Bail

• Relevant amendment: Eighth

Description: Money or other financial assets posted by persons accused of crimes as security for their appearance at trial.

Significance: Because of the inherent unfairness of subjecting an unconvicted person to a long, indefinite period of imprisonment, the Supreme Court has attempted to ensure that the accused is not unreasonably detained. Denial of bail or excessive bail is considered an unreasonable impediment to the accused person’s right to prepare a defense.

The use of bail has been a part of the Anglo-American criminal justice system since the English Bill of Rights of 1689 gave protections against excessive bail. The Founders of the American republic counted the right to a just bail among the essential liberties. The Eighth Amendment to the United States (US) Constitution guarantees that “excessive bail shall not be required.” A stronger expression of the contemporary feeling about bail is found in the Northwest Ordinance of 1787, which declared that “all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.”

In 1895, the Supreme Court first affirmed the importance of a right to reasonable bail in Hudson v. Parker. Writing for the majority, Justice Horace Gray noted that a key principle of the US justice system was “the theory that a person accused of a crime shall not, until he has been finally adjudged guilty . . . be absolutely compelled to undergo imprisonment or punishment.” However, an earlier decision, McKane v. Durston (1894), limited the scope of this decision by ruling that the Eighth Amendment’s bail provision did not apply to state courts.

The court in Stack v. Boyle (1951), a case involving twelve Communist Party leaders accused of conspiracy, was concerned that excessive bail hampered the accused’s right to a vigorous defense. The court held that “the traditional right to freedom before conviction permits the unhampered preparation of a defense. Unless the right to bail is preserved, the presumption of innocence, secured after centuries of struggle, would lose its meaning.” The court determined that the purpose of bail is to “serve . . . as assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment.” However, the following year, in Carlson v. Landon (1952), the court, in a 5–4 vote, found that not all detentions were subject to bail, and Congress had the power to define cases in which bail was not allowed. The Carlson case was a civil case involving the detention of aliens before a deportation hearing.

While the right to bail has traditionally been assumed, it is not actually guaranteed by the Constitution—only the right to avoid excessive bail, if bail is granted. To correct this, Congress passed the Bail Reform Act of 1966, which guarantees that, in most cases, people charged with non-capital offenses have the right to be released pending trial, either on bail or personal recognizance.

Preventive Detention

Traditionally, the sole justification for jailing an accused but otherwise presumed innocent person before trial was to ensure the individual did not flee. It was generally not believed to be proper to deprive people of their liberty because they might commit future crimes if they had not been convicted. However, the accused person's legal rights clashed in the late twentieth century because federal authorities wanted to “preventively detain” persons charged with federal crimes to prevent them from engaging in criminal activities. One concern was the fear that members of criminal organizations freed on bail might harass and intimidate witnesses, thereby corrupting the judicial process.

The rise of international terrorism and drug trafficking led Congress to replace the Bail Reform Act of 1966 with the Bail Reform Act of 1984, which allows a federal judge to consider preventive detention of a person accused of a federal crime if they find that “no conditions or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any person before trial.” The act allows a federal prosecutor to ask a judge to hold a defendant without bail indefinitely if the prosecutor can show that the person poses a threat to others.

The Act Examined

The constitutionality of the Bail Reform Act was determined by the court in United States v. Salerno (1987). Salerno involved two defendants who were indicted for racketeering and denied bail under the provisions of the act. One of the accused was alleged by prosecutors to be the “boss” of the Genovese crime family, and the other a high-ranked “captain.” The crimes included several counts of extortion and conspiracy to murder. The court examined whether the bail reforms violated the defendant’s constitutional right to be free from excessive bail, but it rejected the claim that Stack applied to the case. Limiting the scope of Stack, the court found that the right to bail had never been considered absolute and that persons accused of capital crimes and at risk of flight had long been subject to bail restrictions and upheld the act. The court noted that although “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” the Bail Reform Act fell “within that carefully limited exception.” The court determined that the “numerous procedural safeguards” adequately protected against abuse of the act.

After the Bail Reform Act of 1984, numerous states passed legislation addressing the ongoing criticisms of the US bail system. States such as New York, New Jersey, and Alaska implemented their own bail reforms, with many jurisdictions eliminating cash bail for misdemeanors and nonviolent felonies. Instead, individual offenders are assessed based on risk. These reforms were meant to address the inequities of the justice system that affect offenders of low socioeconomic status. The changes indicate that although the Bail Reform Act of 1984 remains a foundation document for the justice system, developments in the bail system are dynamic and ongoing. 

In 2025, shortly after Donald Trump began his second term as president, he issued an executive order that diverted federal funds away from jurisdictions issuing cashless bail to violent offenders. These decisions aligned with some state-level bail reform actions. For example, Illinois became the first state to eliminate cash bail in 2023, and other states, such as New Mexico and New Jersey, reduced or seriously restricted cashless bail.

Bibliography

Allen, Ronald J., et al. Criminal Procedure: Adjudication and Right to Counsel. 4th ed., Aspen Publishing, 2025.

"Beyond Bail: What’s Next for Reform?" The Bail Project, 5 Mar. 2025, bailproject.org/learn/beyond-bail-whats-next-for-reform. Accessed 8 Dec. 2025.

Duker, William F. "The Right to Bail: A Historical Inquiry." Albany Law Review, vol. 42, 1977, pp. 33–120.

Eastaugh, Charlie. The U.S. Constitution’s Eighth Amendment: Bail, Fines, and Punishments. Routledge, 2025.

"Fact Sheet: President Donald J. Trump Takes Steps to End Cashless Bail to Protect Americans." The White House, 25 Aug. 2025, www.whitehouse.gov/fact-sheets/2025/08/fact-sheet-president-donald-j-trump-takes-steps-to-end-cashless-bail-to-protect-americans. Accessed 8 Dec. 2025.

Garahan, Sabina. Detention and the Right to Liberty: Addressing Gaps in Protection at the European Court of Human Rights. Taylor & Francis Group, 2025.

Goldkamp, John S. "Danger and Detention: A Second Generation of Bail Reform." Journal of Criminal Law and Criminology, vol. 76, spring 1985, pp. 1–74.

Hegreness, Matthew J. "America's Fundamental and Vanishing Right to Bail." Arizona Law Review, vol. 55, no. 4, 2013, pp. 909–96.

"How Courts Work." How Courts Work, 9 Sept. 2019, www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/bail. Accessed 8 Dec. 2025.

Karefa, Rena. "NACDL - Bail Reform." National Association of Criminal Defense Lawyers, 2 Nov. 2022, www.nacdl.org/Content/Bail-Reform-NY. Accessed 8 Dec. 2025.

Metzmeier, Kurt X. "Preventive Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada, and Other Common Law Nations." Pace International Law Review, vol. 7, spring 1996, pp. 399–438.

Petis, Lisel. "Navigating Bail Reform in America: A State-by-State Overview." R Street Institute, 5 Mar. 2024, www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview. Accessed 8 Dec. 2025.

Pinto, Nick. "The Bail Trap." The New York Times, 16 Oct. 2015, www.nytimes.com/2015/08/16/magazine/the-bail-trap.html. Accessed 8 Dec. 2025.

"Pretrial Release: State Constitutional Right to Bail." National Conference of State Legislatures, 14 Feb. 2025, www.ncsl.org/civil-and-criminal-justice/pretrial-release-state-constitutional-right-to-bail. Accessed 8 Dec. 2025.