Bail History

Notes on the origin of our Bail System.


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 Westminster 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.

The Act stated: 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 & ldots; unless it shall appear & ldots; that the Party (is) & ldots; committed & ldots; 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 Westminster 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. The 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 in those 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 person’s dangerousness is 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.