Bail and The Eighth Amendment

Bill of RightsThe eighth amendment to the United States Constitution reads “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” America’s founding fathers were concerned with preventing government intrusion and overreach into the private affairs of citizens. This interest in protecting citizens from harsh criminal punishment stems from the British monarchy’s treatment of American colonists arrested by British officials.

The origins of modern bail can be traced to Medieval England where it would develop as a part of English common law, eventually being included in the English Bill of Rights. The protections first guaranteed several centuries ago have been expanded to include even greater safeguards from government authority.

“Innocent until proven guilty” is the backbone of the American justice system and bail is the practical application of this phrase. If law enforcement agencies could detain an arrestee until their trial, it would undermine the presumption of innocence of the defendant. Essentially, holding a suspect in jail until their trial would mean depriving a defendant of freedom without granting them the due process of a trial.

While the eighth amendment protects your freedom from excessive bail, it does not guarantee your right to bail. A court may choose to deny bail to a defendant in cases of particularly egregious crimes, in cases where the defendant is not likely to return to court to stand trial or in cases where defendants are considered a risk to themselves or the community.

The Bill of Rights to the United States Constitution is primarily concerned with protecting the rights of citizens who have been arrested. The eighth amendment covers various sentencing restrictions that are placed on federal judges and prosecutors including the freedom from excessive bail. Protect yourself by knowing your rights. Check out a full copy of the U.S. Constitution here.