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If We Can't Bail Them Out, NO ONE CAN!

Why Bail is Constitutionally Protected

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What is Bail?

Bail in itself is a pretty basic idea. Form of property pledged or deposited to court to get them to release a suspect from jail, with the understanding that the suspect will return to court for trial. If the suspect fails to appear they forfeit pledged property or “bail” and have charges of failure to appear brought up, on top of what they were already accused.

Constitutional protection refers to those basic protections guaranteed by the U.S. Constitution. The protection stated in the constitution is part of those protections in the Bill of Rights.

The Eighth Amendment

The Eighth Amendment is where greater detail of bail comes into play. This amendment in the U.S. Constitution is part of the Bill of Rights. It prohibits the Federal Government from imposing excessive bail, or fines, cruel and/or unusual punishment, inclusive of torture.

While bail isn’t always a guarantee, as certain crimes it isn’t allowed per the Eighth Amendment, it’s protected by this same Amendment. It protects the people that require the bail to be released from jail to prepare their defense.

Protection from excessive bail and/or fines also makes sure there are enough funds and/or collateral available to be able to pay for the defense fund if required. It’s known throughout history that paying for a defense isn’t cheap, especially with a serious charge.

Why is Bail Constitutionally Protected?

Bail is also protected by the constitution because in previous history it wasn’t.

Since back in the day Sherriff’s were the one to make the decision on fines and punishments, and they had a tendency to abuse their power, Parliament decided in1275 that they would pass a statute that there would be bailable and non-bailable offenses.

The Kings judges typically always undermined the provisions of the law. It kept stating that they could hold a suspect without bail per the Sovereign’s command. Eventually, this made the Petition of Right of 1628 argued that neither the King nor his judges had the authority to do such a thing. Of course as always, technicalities in the laws were found and exploited keeping people imprisoned without bail even if the offense was bailable. These loopholes were eventually closed by the Habeas Corpus Act of 1679.

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Finally judges were required to set bail, but then started setting impossible amounts of bail to achieve and were completely impractical. In 1689 the English Bill of Rights was adopted. However the Eighth Amendment was adopted into the Bill of Rights in 1791 and is almost identical to the English Bill of Rights of 1689. The English Bill of Rights of 1689 changed that as it stated “excessive bail ought not be required”. Although it never did describe what “excessive” meant, nor did it describe what is or isn’t a bailable offense. The Eighth Amendment has been interpreted to mean the bail should meet the offense.

The English Bill of Rights came about largely due to the case in England of Titus Oates who, after the rise of King James II in 1685 wrongly accused many people of crime in a case and had them killed. In doing so Oates was then put in prison and convicted of perjury without trial or bail and tortured for some time. Once a year taken out for days at a time for even the most of innocent of people to see him be tortured and whipped, so they could be shown to be just as guilty as he. Parliament then enacted English Bill of Rights and announced that not only were the actions taken against Oates “barbarous” and “inhuman” but also “extravagant” and “exorbitant”. Leaving the words that Parliament later approved into law as “cruel and unusual punishments”.

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What Else is Covered Under the Eighth Amendment

Along with the cruel and unusual punishment, there are also stipulations in the Eighth Amendment that there are punishments that are NOT allowed regardless of crime. The Supreme Court found that executing neither a mentally handicapped person nor a person under the age of 18 would be going against the Eighth Amendment as neither would understand their punishment. 

Larry Nowak

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