Limits to How Much Bail the Judge Can Require

Bail should not be used to punish a defendant, or raise money for the state. Its valid use is to secure the defendant's presence at trial.

The Eighth Amendment to the United States Constitution (which is binding on all states) requires that the amount of bail not be excessive. What this means is that bail should not be a way to raise money for the state or to punish a person for being suspected of committing a crime. Nor can the police use bail to keep a suspect in jail simply to give themselves more time to gather evidence. Because a suspect is innocent until proven guilty, the amount of bail should be no more than reasonably necessary to keep the suspect from fleeing the jurisdiction before the case is over.

(For related information, see Can you appeal a judge's bail order?)

The Reality of Bail Amounts

Despite the principles explained above, many judges set unaffordably high bail in some types of cases to keep suspected offenders in jail pending trial. Judges can lose elections when defendants they’ve released on bail commit new crimes, but rarely take political heat for keeping a suspect behind bars. High bail is particularly likely when a defendant poses a danger to the community or has committed an offense against a child. A judge may also set higher bail if a defendant is likely to flee the jurisdiction before trial or has a prior criminal record. Although some legal commentators argue that preventive detention—keeping a defendant in jail out of fear that the defendant is dangerous—violates the Eighth Amendment, the U.S. Supreme Court upheld the practice in U.S. v. Salerno (1987).

Foreign Nationals

Because of terrorism concerns, foreign nationals may face special obstacles in the bail-setting process. Arrested foreign nationals may need to contact a lawyer with experience in both criminal law and immigration issues, and may also want to contact their country’s consulate.

Example: Rex Kars is charged with felony hit-and-run driving. At a bail setting hearing, the judge sets bail at $5,000. Kars argues that the bail is excessive, as he cannot afford to post that amount in cash nor does he have sufficient collateral to purchase a bail bond. However, while a judge can consider Kars’s personal history and financial ability when setting bail, the fact that Kars cannot afford to pay the bail that is set does not make it excessive.

Example: Holly Woode is arrested for stealing two blouses from a clothing store (petty theft). During a bail hearing, the judge tells Holly, “In my opinion, once a petty thief always a petty thief. If I let you out on bail, you’ll probably just go on stealing.” With that, the judge denies bail to Holly. (Alternatively, the judge sets bail so high that Holly clearly has no way of paying it.) The judge’s decision is arbitrary and invalid. The crime that Holly is accused of committing is not one of violence, so preventive detention is unnecessary. Moreover, the judge’s comments are based only on the judge’s predisposition, not on information about Holly. Holly can file a petition for habeas corpus asking another judge to set reasonable bail.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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