The Right of Reasonable Bail
The concept of bail, while as old as the English common law itself, has not always held the same status as it holds today. In fact, the English common law held that admission to bail was a matter of discretion for the court, not one of right for the individual. Abuses of this judicial discretion in England led to a ban against excessive bail in the English Bill of Rights of 1689. This prohibition was the direct forerunner of the provision in the Eighth Amendment that "excessive bail shall not be required."
Bail is basic to the system of individual protection set up by the U. S. Constitution and comparable state documents. Without bail, a person could be held indefinitely, until it is convenient to release him. Bail bolsters what the U. S. Supreme Court has called a traditional right to freedom before conviction. It also permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence -- which every defendant retains until proven guilty -- would lose its meaning.
The Eighth Amendment itself does not speak of any right to bail; rather, it prohibits the imposition of excessive bail. Nevertheless, simple logic would indicate that a prohibition against excessive bail assumes the availability of bail.
The nation's lawmakers have always proceeded along the same line of thinking. From the passage of the first Judiciary Act to the current Federal Rules of Criminal Procedure, federal law has provided that a person arrested for a non-capital offense shall be admitted to bail.
The governing federal statute categorically states that "a person arrested for an offense not punishable by death shall be admitted to bail . . ." Similarly, bail "may" be allowed in the case of an offense punishable by death or pending an appeal. Under federal procedure, there is an absolute right to bail in non-capital cases.
What this means in practice is the elimination of the discretion which the common law vested in the courts with regard to whether or not bail should be allowed. This does not eliminate the use of judicial discretion in bail cases, but it does bar choice by the judge on the question of whether an individual arrested for other than a capital offense should be admitted to bail.
The rule of absolute right to bail -- at least in non-capital cases -- which is imposed upon the federal courts by the Eighth Amendment is provided for expressly in the constitutions of some 40 states.
Many factors must be considered by a judge in determining the amount of bail assigned to an individual. Among these factors is the financial ability of the accused. At the same time, it has been established that bail is not rendered excessive within the meaning of the constitutional prohibition by the mere inability of the individual concerned to procure bail in the amount required.
The fairness of such a rule was questioned in the 1960 case of Brady v. U.S. Bail of $5,000 had been granted in a non-capital case after conviction and pending an appeal. The petitioner applied to U. S. Supreme Court Justice William O. Douglas for release on "personal recognizance" pending the appeal, stating that he was indigent and could not raise the bail. In a controversial opinion, Justice Douglas conceded that he was troubled by the application. While noting that the setting of excessive bail to prevent a defendant from gaining release would be a clear violation of the Eighth Amendment, he said, "Yet in the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release."
In a later opinion in the same case, Justice Douglas declared, "Further reflection has led me to conclude that no man should be denied release because of indigence. Instead, under our constitutional system, a man is entitled to be released on 'personal recognizance' where other relevant factors make it reasonable to believe that he will comply with orders of the Court."
Although it is easy to sympathize with this view, the question remains as to whether it is demanded by the Eighth Amendment. Pushing the view to its logical extreme, it means the fixing of bail in any amount, no matter how small, where the accused is indigent, would constitute a case of excessive bail within the scope of the constitutional prohibition. Such an approach would, in effect, give the poor defendant an advantage denied his more prosperous counterpart. Such an extreme was clearly not the goal of the framers of the Constitution and Bill of Rights. When considering the Eighth Amendment, it must imply a power of the courts to fix bail that is reasonable under standards governing the amount of bail. It must also be noted that the Eighth Amendment provisions deal only with the time before a defendant is tried for his crime. Court cases are uniform in holding that the constitutional guarantee of bail does not apply after conviction. Thus, though bail after conviction and pending appeal is normally available to a defendant, he has no constitutional right to such bail.
Justice Douglas, again speaking in the Bandy case, summarized the importance of the right to bail for all accused persons: "This traditional right to freedom during trial and pending judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the device which we have borrowed to reconcile these conflicting interests . . . It is assumed that the threat of forfeiture of one's goods will be an effective deterrent to the temptation to break the conditions of one's release.
"It would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom . . . The wrong done by denying release is not limited to the denial of freedom alone. That denial may have other consequences. In case of reversal, he will have served all or part of a sentence under an erroneous judgment. Imprisoned, a man may have no opportunity to investigate his case, to cooperate with his counsel, to earn the money that is still necessary for the fullest use of his right to appeal."
It is thus obvious that a court's judgment on the amount of bail that is "reasonable" must be formulated from the circumstances surrounding each individual defendant. And, should the court set a bail amount considered too high by the defendant, the possibility of an appeal to a higher court remains a valid option. The system of appeal routes is part of the process that safeguards all citizens' constitutional guarantees.