The History of Bail
During the colonial period, Americans relied upon
the existing bail structure that had evolved in England over several hundreds of
years. However in 1776, when the colonists declared their independence, they no
longer depended on English law, rather they set down policies which closely
corresponded to English tradition.
In medieval England, processes to ensure that
the accused would appear for trial began as early as the trials themselves. It
wasn't until the 13th century that the Sheriffs were allowed to determine when a
defendant could be detained for trial and when he could be released
with a guarantee or a promise that he would return to stand trial.
Unfortunately, the sovereign authority held by Sheriffs was not always equitably
disseminated throughout each region. As a result, the Statute of Westminister
was established in 1275, and eliminated the discretion of sheriffs with respect
to which crimes were and were not bail-able.
It wasn't until several centuries later that
bail law underwent its next major change. Early in the 17th century when King
Charles I did not receive funds from the Parliament, he required several
noblemen to issue him loans. Those who refused were imprisoned without bail.
Five knights previously incarcerated for this offense filed a habeas corpus
petition arguing that they could not be held indefinitely without bail or trial.
In court, Attorney General Heath contended that the King could best balance the
interest of the state security along with the interest of individual liberty if
he was allowed to continue to exercise his sovereign authority to imprison. The
court upheld Attorney General Heath's argument.
In response to the King's action and the
court's ruling, Parliament issued the Petition of Right of 1628 arguing that
contrary to the Magna Carta and other laws guaranteeing that no man could be
imprisoned without due process of law, the King had recently imprisoned people
before trial when no just cause had been shown. Unfortunately, the King, the
courts and the sheriffs were able to defeat the intent of the Petition of Right
of 1628 by creating various procedural delays in granting the writs of habeas
corpus. It wasn't until these procedural delays were critically excessive that
Parliament passed the Habeas Corpus Act of 1677.
A magistrate shall discharge the said
prisoner from Imprisonment taking his or their Recognizance, with one or
more Surety or Sureties, in any Sum according to their discretion, having
regard to the Quality of the prisoner and the Nature of the offense, for his
or their Appearance in the court of the Kings bench unless it shall
appear that the Party (is) committed for such Matter or
offenses for which by law the Prisoner is not bail-able.
Although the Habeas Corpus Act of 1677
improved administration of bail laws, it didn't provide any protection
against excessive bail requirements. As a result, even if a suspect was
accused of a bail-able offense, he may still be detained if the bail amount
was inordinately high. As substantiation of this abuse reached Parliament,
it responded with the English Bill of Rights of 1689. The Bill of Rights
proposed to resolve this issue by proclaiming "that excessive bail ought not
to be required." Thus, the concept of the Eighth Amendment in the U.S
Constitution was drafted to prevent the accused of bail-able offenses from
exorbitantly high bail requirements. It is important to note that while the
amount of bail was addressed, it did not alter the categories of bail-able
crimes as referenced in the Statute of Westminister and clearly did not
guaranty the right to bail.
In 1789 James Madison was commissioned to
prepare an initial draft for the Bill of Rights and essentially used
verbatim Section 9 of the Virginia Constitution which provided that
"Excessive bail shall not be required&ldots;." During the congressional
debates Mr. Livermore voiced his concern that this amendment only required
that bail not be excessive, but didn't provide a definition of what
constituted an excessive bail requirement.
bail clause in the Eighth Amendment was only the first part of the
structure. The final part of the American bail structure and the basis upon
which the Constitution provisions are based is the statutory classification
of justice officials' power concerning bail and the categorization of crimes
into bail-able and non-bail-able offenses.
The Eighth Amendment forbiddance of
excessive bail resolved that bail might not be exorbitant inthose cases
where Congress has deemed it suitable to permit bail. The Congress then
enacted the Judiciary Act defining what offenses would be bail-able. Habeas
corpus protection was provided by Article 1 of the Constitution.
In 1966, Congress enacted the first major
substantive change in federal bail law since 1789. The Bail Reform Act of
1966 created a principle for releasing a suspect with as little burden as
necessary in order to insure his appearance at trial. In 1969 the Judicial
Council Committee studied Bail Reform Act of 1966, and was particularly
bothered by the release of potential dangerous non-capital suspects
permitted by the 1966 law and recommended that even in non-capital cases, a
persons dangerousness be considered in determining conditions for release.
Congress upheld the ideals put forth in the committee's proposal and changed
the 1966 Bail Reform Act as it applied to persons charged with crimes in the
District of Columbia. With that decision by Congress came the bail system,
as we know it today.
Although evolving over several centuries,
modern day bail most closely resembles the system, initially designed to
keep the King's peace in medieval England, which placed responsibility of
the defendant to a tithing or even a whole township in order to ensure that
the accused would appear before the court.
Applicable Case Law:
Taylor v. Taintor:
Decided by the courts in 1873
"When bail is given, the principal is regarded as delivered to the
custody of his sureties. Their dominion is a continuance of the original
imprisonment. Whenever they choose to do so, they may seize and deliver
him up in their discharge, and if that can not be done at once, they may
imprison him until it can be done. They may exercise their rights in
person or by agent. They may pursue him into another state; may arrest
him on the Sabbath; and if necessary, may break and enter his house for
that purpose. The seizure is not made by virtue of the new process. None
is needed. It is likened to the re-arrest, by the Sheriff, of an
escaping prisoner" (Emphasis added.)
Common Law Right To Arrest:
Additionally, modern statues provide
Bail Agents with the right to arrest an individual out on a bond. Under
the Federal statute declaratory of this right, any accused charged with
a criminal offense who is released on a bail bond with sureties may be
arrested by the surety, delivered to the US Marshall, and brought before
any judge or officer empowered to commit for such offense. At the
request of the surety, such judicial officers may re-commit the accused
to the custody of the Marshall.