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When is Bail Considered Excessive? An Eighth Amendment Analysis

Stories of persons held on seemingly excessive multi-million dollar bonds have sparked a question: How much bail is too much? For example, music mogul Suge Knight was held on $25 million bond for running over two men, killing one of them.[i]

Excessive bail is not a hurdle faced only by the wealthiest members of society. Pre-trial detention costs have caused a re-examination of the efficacy of cash bonds at the judiciary’s lowest levels, where local courts hear minor offense cases. There, impoverished defendants often remain imprisoned while awaiting trial because even minimum bonds exceed their financial resources. The resulting tax burden is increasingly making taxpayer, not constitutional, considerations, the focus of what constitutes excessive bail.

The issue of what constitutes excessive bail has roots that pre-date the founding of the United States. Despite this passage of time, the Supreme Court’s few rulings on the issue have done little to resolve the question of “How much bail is too much?” The purpose of this article is to examine the history of primary cases dealing with this question and provide the practical implications of excessive bail.

The Eighth Amendment and Excessive Bail

The Eighth Amendment to the Constitution, known primarily for prohibiting cruel and unusual punishment, also precludes the imposition of excessive bail: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[ii]

The Excessive Bail Clause is implemented at the federal level through the Bail Reform Act of 1966 and subsequent amendments to that Act.[iii] The statute requires a judicial officer to hold a hearing on the conditions, if any, for the release of a defendant awaiting trial. The judicial officer must release a defendant on personal recognizance (i.e., without a cash bond) unless that hearing shows that: “[S]uch release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.[iv] If the hearing shows otherwise, the judicial officer is required to impose the least restrictive conditions that will assure the defendant’s appearance in court and public safety.

The posting of a financial bond is BUT ONE of the conditions that can be imposed. The other conditions require the defendant to:

         · Remain in a specific person’s custody;

         · Seek or maintain employment or schooling;

         · Comply with residential or travel restrictions;

         · Avoid contact with victims, potential witnesses or others;

         · Not possess weapons;

         · Refrain from using illegal drugs or excessive use of alcohol; and

         · Undergo medical, psychological, psychiatric or substance abuse treatment.[v]

A defendant can be detained without bail only upon a finding that no conditions would assure his or her appearance in court and public safety. The judicial officer is prohibited from imposing a financial condition that results in detention.[vi]

In addition to these federal standards, all fifty states also provide for varying degrees of bail.[vii]

U.S. Supreme Court Attempts to Answer, “How much bail is too much?”

The Excessive Bail Clause is “one of the least litigated… provisions in the Bill of Rights,” with only three cases from the Supreme Court of the United States directly addressing it.[viii] Those cases have focused on the issue of when bail can be denied, without otherwise “definitively [answering] the questions of what the … Clause means or when it applies.”[ix]

Stack v. Boyle

The Court initially adopted a liberal approach to the Clause in 1951, when it decided Stack v. Boyle.[x] The defendants in Stack were charged with conspiracy to overthrow the government.[xi] Their $50,000 bond exceeded the amount usually imposed for offenses with similar penalties.[xii] The Supreme Court overturned denials of the defendants’ motion to reduce the bond, emphasizing the role bail plays in maintaining a fundamental freedom: “Th[e] traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction… Unless this right to bail before trial is preserved, the presumption of innocence… would lose its meaning.[xiii]

The Court found that the function of bail was to balance this right with an assurance that a defendant would “stand trial and submit to sentence if found guilty.”[xiv] It held that:

Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment.[xv]

The Court reasoned that the bail imposed upon the Stack defendants did not fulfill this purpose because there was no evidence that the defendants were a flight risk.[xvi]

Carlson v. Landon

The Court narrowed its approach to bail little more than four months later, in Carlson v. Landon.[xvii] In Carlson, four alien Communists were arrested pursuant to law allowing for the deportation of foreign Communist party members. They claimed that their detention without bond violated the Excessive Bail Clause.[xviii]

This time, the Court quickly dispensed with their contention. It held that the excessive bail prohibition DID NOT imply an absolute right to bail. Justice Reed wrote, “The contention is also advanced that the Eighth Amendment…compels the allowance of bail in a reasonable amount… The bail clause was lifted, with slight changes, from the English Bill of Rights… In England, that clause has never been thought to accord a right to bail in all cases,… but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.[xix]

United States v. Salerno

The Court reiterated this position thirty-five years later, in United States v. Salerno.[xx] There, the defendants were charged with engaging in organized crime activities. The trial court denied bail, finding that the defendants would likely continue to engage in crimes that would endanger the community if they were released. The defendants argued that the Bail Reform Act provision authorizing this detention violated the Excessive Bail Clause. Citing Stack, they claimed that the Clause limited bail decisions to risk of flight considerations.[xxi]

The Court dismissed the defendants’ reliance upon the Stack “flight risk” holding, calling it “far too slender a reed on which to rest…”[xxii] Citing Carlson, the Court held that the Excessive Bail Clause is not violated when bond is denied to promote other legitimate governmental interests: “[W]hen Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require …bail.[xxiii]

Practical Implications of Leaving the Question Unanswered

The dearth of judicial guidance on how much bond is too much has created a “bail crisis,” filling local jails, impacting other parts of society and not fulfilling bail’s purpose. The resulting taxpayer burden has shifted the responsibility for who should answer this question, from judges in courts to policy-makers in state legislatures.

The practical considerations of leaving the excessive bail question unanswered are numerous. The first is the courts’ inability to make meaningful bond determinations. Crowded bond court dockets result in abbreviated proceedings, with most only taking minutes. Absent guidance on the excessive bail question, judges efficiently decide these cases by quickly imposing cash bonds in amounts they consider to be “customary” for the charged offense. Little consideration is given to alternatives or the defendant’s ability to pay. Consequently, many defendants held for minor offenses remain incarcerated until trial or plead guilty to be released because they cannot afford even minimum bonds.[xxiv] At the end of 2015, almost two-thirds of jail inmates were held without a conviction.[xxv]

The second practical consideration of indecision on this issue relates to the first. The judiciary’s summary style imposition of bonds is not fulfilling the baseline goal of assuring a defendant’s appearance in court. Rising bail amounts have not caused the “failure to appear” rate to decrease.[xxvi]

A third practical implication of this failure is the cost it imposes on others. Indigents who cannot afford to pay bonds sometimes lose jobs, impacting family members and employers who rely on them. When an indigent can come up with money to post bond, this money often comes at the expense of funds needed for family living expenses.[xxvii]

These first three have created a fourth practical implication: a cost to taxpayers and a shift in who is focusing on answering the question. Pre-trial incarceration costs have pushed policy-makers to assume responsibility for resolving the excessive bail issue. In Cook County, Illinois, for example, a single offender cost taxpayers $4,000 for a 28 day stay in jail after reportedly stealing a $4.58 meal.[xxviii] Illinois’ legislature responded by creating an “Accelerated Resolution Program,” commonly called the “Rocket Docket”. It requires courts to try defendants charged with certain minor offenses within a 30-day period, or release them on personal recognizance, a pretrial release without bail on the basis of a promise by the defendants to return to court.[xxix] Additionally, Cook County’s State’s Attorney no longer opposes the release of pre-trial defendants who cannot pay bonds of $1,000 or less.[xxx] Elected officials in California and New Jersey have also monitored the activity in states like Illinois and are among other places in the process of reforming their bail systems through the state legislature.[xxxi]

The failure to fully define the Excessive Bail Clause’s fundamental rights has wide-reaching consequences for government at all levels. The breadth and significance of those implications makes it likely that the question of “When is bail too much?” will be answered soon.

[ii] U.S. Const. amend. VIII.

[iii] See, comments to 18 USC Sec. 3142 (available at (accessed May 28, 2017).

[iv] 18 USC Secs. 3142(b), (e).

[v] 18 USC Sec. 3142(c)(1)(b).

[vi] 18 USC Secs. 3142(e), (c)(3)

[vii] Eighth Amendment Excessive Bail Clause Applies to States Through Fourteenth Amendment, 60 Wash. U. L. Q. 645 (1982) at 654 (Available at: (accessed May 25, 2017).

[viii] Michael S. Woodruff, Note, The Excessive Bail Clause: Achieving Pretrial Justice Reform Through Incorporation, 66 Rutgers L. Rev. 241 at 243 (2013) (Available at (accessed May 25, 2017).

[ix] Gassman, Kayla. "Unjustified Detention: The Excessive Bail Clause in Removal Proceedings." American University Criminal Law Brief 4, no. 1 (2009):35-50, at 39 (Available at (accessed May 25, 2017).

[x] 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

[xi] 18 USC Sec. 2385.

[xii] 342 U.S. at 3, 5.

[xiii] 342 U.S. at 4.

[xiv] Id.

[xv] 342 U.S. at 5.

[xvi] 342 U.S. at 5-7.

[xvii] 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 2d 547 (1952)

[xviii] 342 U.S. 527-529, fns. 4, 5.

[xix] 342 U.S. 545-546.

[xx] 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).

[xxi] 481 U.S. at 743-744, 752-753. See also, note xi above.

[xxii] 481 U.S. at 753.

[xxiii] 481 U.S. at 754-755.

[xxiv] Woodruff, id., at 242, 249.

[xxv] Minton, Todd D. and Zhen Zeng, U.S. Department of Justice, Bureau of Justice Statistics, “Jail Inmates in 2015”, at Tables 3, 4 (Available at (accessed May 25, 2017).

[xxvi] Justice Policy Institute, “Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail” (2012) at 22 (Available at (accessed June 1, 2017).

[xxvii] Justice Policy Institute, id., at 13-14

[xxviii] Glawe, Justin, “Chicago’s Jail Kept Inmates Locked Up for 218 Years Too Long”, The Daily Beast, June 8, 2016 (Available at (accessed May 25, 2017).

[xxix] Cook County Sheriff, “Governor Signs Sheriff Dart’s ‘Rocket Docket’ Legislation”, August 8, 2016 (Available at (accessed May 25, 2017). See also, Glawe, id.

[xxx] Schmadeke, Steve, “Foxx agrees to release of inmates unable to post bonds of up to $1,000 cash”, Chicago Tribune, March 1, 2017 (Available at (accessed on May 27, 2017).

[xxxi] Crogran, Jim, “Defining moment: Will California end its money bail system?”, Salon, April 21, 2017 (Available at (accessed on May 27, 2017); Rice, Josie Duffy, “New Jersey passes new bail reform law, changing lives of poor defendants”, January 3, 2017 (Available at (accessed on May 27, 2017).