Written by attorney Bill Powers



Sec. 27. Bail, fines, and punishments.

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



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


"This 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, secured only after centuries of struggle, would lose its meaning."1 "The bail clause was lifted with slight changes from the English Bill of Rights Act. 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. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept."2 These two contrasting views of the "excessive bail" provision, uttered by the Court in the same Term, reflect the ambiguity inherent in the phrase and the absence of evidence regarding the intent of those who drafted and who ratified the Eighth Amendment.3

The history of the bail controversy in England is crucial to understanding why the ambiguity exists.4 The Statute of Westminster the First of 12755 set forth a detailed enumeration of those offenses which were bailable and those which were not, and, though supplemented by later statutes, it served for something like five-and-a-half centuries as the basic authority.6 Darnel's Case,7 in which the judges permitted the continued imprisonment of persons without bail merely upon the order of the King, was one of the moving factors in the enactment of the Petition of Right in 1628.8 The Petition cited Magna Carta as proscribing the kind of detention that was permitted in Darnel's Case. The right to bail was again subverted a half-century later by various technical subterfuges by which petitions for habeas corpus could not be presented,9and Parliament reacted by enacting the Habeas Corpus Act of 1679,10 which established procedures for effectuating release from imprisonment and provided penalties for judges who did not comply with the Act. That avenue closed, the judges then set bail so high it could not be met, and Parliament responded by including in the Bill of Rights of 168911 a provision "[t]hat excessive bail ought not to be required." This language, along with essentially the rest of the present Eighth Amendment, was included within the Virginia Declaration of Rights,12 was picked up in the Virginia recommendations for inclusion in a federal bill of rights by the state ratifying convention,13 and was introduced verbatim by Madison in the House of Representatives.14

1 Stack v. Boyle, 342 U.S. 1 (, 4 ( (1951). Note that in Bell v. Wolfish, 441 U.S. 520 (, 533 (, the Court enunciated a narrower view of the presumption of innocence, describing it as "a doctrine that allocates the burden of proof in criminal trials," and denying that it has any "application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun."

2 Carlson v. Landon, 342 U.S. 524 (, 545 ( (1952). Justice Black in dissent accused the Court of reducing the provision "below the level of a pious admonition" by saying in effect that "the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away." Id. at 556.

3 The only recorded comment of a Member of Congress during debate on adoption of the "excessive bail" provision was that of Mr. Livermore. "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be judges?" 1 ANNALS OF CONGRESS 754 (1789).

4 Still the best and most comprehensive treatment is Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REV. 959, 965-89 (1965), reprinted in C. FOOTE, STUDIES ONBAIL 181, 187-211 (1966).

5 3 Edw. 1, ch. 12.

6 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 233-43 (1833). The statute is summarized at pp. 234-35.

7 3 How. St. Tr. 1 (1627).

8 3 Charles 1, ch. 1. Debate on the Petition, as precipitated by Darnel's Case, is reported in 3 How. St. Tr. 59 (1628). Coke especially tied the requirement that imprisonment be pursuant to a lawful cause reportable on habeas corpus to effectuation of the right to bail. Id. at 69.

9 Jenkes' Case, 6 How. St. Tr. 1189, 36 Eng. Rep. 518 (1676).

10 31 Charles 2, ch. 2. The text is in 2 DOCUMENTS ON FUNDAMENTAL

HUMAN RIGHTS 327-340 (Z. Chafee ed., 1951).

11 I W. & M. 2, ch. 2, clause 10.

12 7 F. Thorpe, The Federal and State Constitutions, H. R. DOC. NO. 357, 59TH CONG., 2DSESS. 3813 (1909). "Sec. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."


14 1 ANNALS OF CONGRESS 438 (1789).

Thus, in England the right to bail generally was conferred by the basic 1275 statute, as supplemented, the procedure for assuring access to the right was conferred by the Habeas Corpus Act of 1679, and protection against abridgement through the fixing of an excessive bail was conferred by the Bill of Rights of 1689. In the United States, the Constitution protectedhabeas corpus in Article 1, § 9, but did not confer a right to bail. The question is, therefore, whether the First Congress in proposing the Bill of Rights knowingly sought to curtail excessive bail without guaranteeing a right to bail, or whether the phrase "excessive bail" was meant to be a shorthand expression of both rights.

Compounding the ambiguity is a distinctive trend in the United States which had its origin in a provision of the Massachusetts Body of Liberties of 1641,15 guaranteeing bail to every accused person except those charged with a capital crime or contempt in open court. Copied in several state constitutions,16 this guarantee was contained in the Northwest Ordinance in 1787,17 along with a guarantee of moderate fines and against cruel and unusual punishments, and was inserted in the Judiciary Act of 1789,18 enacted contemporaneously with the passage through Congress of the Bill of Rights. It appears, therefore, that Congress was aware in 1789 that certain language conveyed a right to bail and that certain other language merely protected against one means by which a pre-existing right to bail could be abridged.

Long unresolved was the issue of whether "preventive detention"—the denial of bail to an accused, unconvicted defendant because it is feared or it is found probable that if released he will be a danger to the community—is constitutionally permissible. Not until 1984 did Congress authorize preventive detention in federal criminal proceedings.19

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