In 1791, the Eighth Amendment was added to the U.S. Constitution as part of the Bill of Rights for the purpose of prohibiting, among other things, the requirement of ‘‘excessive bail.’’ As applied in the context of the American criminal justice system, ‘‘bail’’ refers to the security or conditions ordered by a court to ensure the appearance of an accused for all court proceedings relating to a pending criminal case. As recognized by the U.S. Supreme Court in United States v. Salerno (1987), ‘‘In our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.’’ This quote summarizes the fundamental notion of personal freedom embodied in the Fifth Amendment due process provisions and the Eighth Amendment prohibition against excessive bail.

History and Conception of Bail

The idea of bail can be traced back hundreds of years before the U.S. Constitution. Original theories of bail are apparent in seventh century Anglo-Saxon law, which provided that persons accused of a crime pay an amount to the family of the victim; the payment was returned if the person was eventually proven innocent.

More modern bail theory can be traced to the late ninth or early tenth century, when sheriffs were required to arrest and hold defendants until they could be brought to trial. Because it often took years before a traveling magistrate could appear for a trial, this system was unjust for the accused, whose liberty was restrained during this period of time, and was a significant imposition on the sheriff, who was often forced to detain prisoners in his own home. To remedy these deficiencies, defendants were permitted to post a monetary bond, or have friends or relatives act as sureties to ensure their appearance at trial. As such, bail was initially created to protect the liberty interests of persons accused of crimes, while ensuring their appearance at trial.

Under modern-day practices, the decisions of whether to grant bail and, if so, in what amount, are made after an individual is charged, arrested, and processed at a police station. Initial bail determinations are often made by magistrates, and may be reviewed later by the court.

History of Federal Bail Law

Congress enacted the first federal bail provision in 1789 as part of the Judiciary Act, which set the guidelines for courts in making bail decisions. The decision of whether to grant bail and the particular amount of bail were left largely to the discretion of the courts. In practice, pretrial release was not favored. There were no substantial changes to bail law until Congress passed the Bail Reform Act of 1966. Contrary to the 1789 Act, this act favored pretrial release in all non– death-penalty cases and focused mainly on the question of whether the accused was likely to flee the jurisdiction in an effort to avoid trial. The purpose of the Bail Reform Act was to eliminate unwarranted and oppressive bail conditions, especially in cases involving indigent defendants. However, many people criticized the Act because it did not address the issue of defendants committing crimes while on bail awaiting trial.

In an effort to address these public safety concerns, Congress enacted the District of Columbia Court Reform and Criminal Procedures Act of 1970. This act was the first federal law that permitted ‘‘preventive detention’’—allowing courts to deny bail when an individual would pose a danger to the community if released pending trial, even if there is no evidence that the individual would flee the jurisdiction. Preventive detention is a controversial issue that continues to be hotly debated among attorneys, judges, and legal scholars. Critics of preventive detention argue that it denies defendants the presumption of innocence and allows the government to incarcerate individuals without a trial or any proof of wrongdoing, and merely on the basis of a prediction of future wrongdoing; while supporters argue that where a showing of future dangerousness is made, an individual’s liberty interest is outweighed by the government’s interest in ensuring community safety. In 1981, the District of Columbia Court of Appeals considered these arguments and upheld the 1970 Act in United States v. Edwards (1981).

Between 1970 and 1984, thirty-four states enacted statutes similar to the District of Columbia statute, all providing for preventive detention. The U.S. Supreme Court upheld constitutional challenges to many of these statutes, labeling them regulatory, rather than penal, in nature. In 1981, the U.S. Attorney General’s Office released a report recommending adoption of federal preventive detention provisions. Then- Supreme Court Chief Justice Warren Burger also supported the need for more flexible bail standards that would allow courts to consider future dangerousness when making pretrial release decisions.

In response to these recommendations and rising public concern regarding crimes committed by persons released pending trial, Congress enacted the Bail Reform Act of 1984, which replaced the Bail Reform Act of 1966. Pursuant to the 1984 act, a federal court may order preventive pretrial detention of an accused if the government demonstrates that no release condition( s) will reasonably ensure the safety of other persons and the community. A federal court may also order pretrial detention if the government shows that no release conditions(s) will reasonably ensure the presence of the accused at trial. The act also set forth specific factors to be considered by the court in setting pretrial release conditions. Specifically, courts are to consider the nature and seriousness of the charged offense, the weight of the evidence against the accused, the history and characteristics of the defendant, and the nature and seriousness of the danger that would be posed to the community by releasing the accused pending trial.

In United States v. Salerno (1987), the Supreme Court rejected constitutional challenges to the preventive detention provisions of the 1984 Bail Reform Act, finding that such detention is consistent with both due process guarantees and protections against excessive bail embodied in the Eighth Amendment to the U.S. Constitution.

The Bail Decision

In a criminal case, bail is generally set within a very short time after arrest. Although each jurisdiction implements its own requirements and procedures for setting bail in criminal cases, many use what are commonly referred to as ‘‘bail schedules’’ or ‘‘master bond schedules’’ to set bail initially. These schedules set bail according to the offense with which a defendant is charged and do not take into account other circumstances such as a defendant’s financial condition, ties to the community or prior criminal history. Some jurisdictions have discontinued the use of such schedules because they fail to take into account issues relevant to ensuring the defendant’s presence at trial or assuring community safety. In Ackies v. Purdy (1970), a federal district court ruled that the use of a master bond list to set bail violates both the due process and equal protection rights of defendants.

Jurisdictions not using bond schedules often rely on pretrial services agencies to gather information relevant to the bail decision. Such agencies interview defendants to determine the extent of their financial resources, ties to the community, and prior criminal history. This information is then reviewed by the court to determine what amount of bail and other release conditions are necessary to ensure the defendant’s appearance at trial and the safety of the community.

When setting bail, a court may consider many forms of monetary and other conditions. Monetary conditions include secured bonds, unsecured bonds, property bonds, and personal recognizance bonds. Under a personal recognizance bond, defendants are not required to submit money to secure their release but are required to pay a set amount if they fail to appear for trial. In addition to, or in lieu of, monetary requirements, defendants may be subject to release conditions such as a requirement to maintain employment, refrain from contacting the alleged victim, report to a pretrial services agency on a regular basis, submit to random drug or alcohol testing, refrain from leaving the jurisdiction, or refrain from committing any criminal acts. The Bail Reform Act includes a preference for pretrial release on personal recognizance or an unsecured appearance bond without additional conditions. Only if such release conditions will not reasonably ensure the defendant’s appearance for trial or the safety of the community are other pretrial bail conditions permitted.

Defendants are permitted to request reductions in the amount of bail set or changes in the release conditions while their case is pending. Likewise, prosecutors may also request changes in a defendant’s release conditions, including a request that a previously ordered bond be revoked pending trial. Generally, these requests are made in the form of a motion filed with the court before which the case is pending. However, in some circumstances, courts may allow bail reduction requests to be made orally, such as at the conclusion of a preliminary hearing or a pretrial motion to suppress evidence. Bail requests for release pending an appeal after conviction may also be made; however, such requests are rarely granted.


References and Further Reading

  • Dressler, Joshua. ‘‘Pretrial Release of the Defendant.’’ In Understanding Criminal Procedure. 3rd ed. Newark, N.J.: LexisNexis Publishing, 2002. 
  • Metzmeier, Kurt X., Preventive Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada and Other Common Law Nations, Pace International Law Review 8 (1996): 399–436. 
  • Scott, Thomas E., Pretrial Detention Under the Bail Reform Act of 1984: An Empirical Analysis, American Criminal Law Review 27 (1989): 1–51. 
  • Wisotsky, Steven, Use of a Master Bond Schedule: Equal Justice Under Law? University of Miami Law Review 24 (1970): 808. 

Cases and Statutes Cited

  • Ackies v. Purdy, 322 F.Supp. 38 (S.D. Fla. 1970) 
  • United States v. Edwards, 430 A.2d 1321 (D.C. 1981) 
  • United States v. Salerno, 481 U.S. 739 (1986)


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