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Bail Questions – Can Bail Be Ruled Too High?

Posted on: 12/09/2011

We’ve heard about some of the huge bail amounts sometimes handed out by the court. But can you ever try and appeal bail as being too much?

Answer: Perhaps.

We all know about “cruel and unusual punishment”. But it is sometimes overlooked that the same ammendment to the Bill of Rights can be applied to pretrial bail. The 8th amendment also touches on bail. It reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The excessive bail provision of the Eighth Amendment to the United States Constitution is based on old English common law and the British Bill of Rights.

In England, sheriffs originally determined whether to grant bail to criminal suspects. Because they tended to abuse their power, Parliament passed a statute where bailable and non-bailable offenses were defined. The king’s judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign’s command. Eventually, the Petition of Right of 1628 argued that the king did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impractical amounts. Finally, the English Bill of Rights (1689) held that “excessive bail ought not to be required.” Nevertheless, the bill did not determine the distinction between bailable and non-bailable offenses.

If your attorney claims excessive bail, a motion can be made for reduction of bail, and if it is not granted, an application for reduction can be made directly to a court of appeal. The Excessive Bail Clause currently governs only federal pre-trial detention.

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