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Bail Bond History


In 1791, the United States Bill of Rights took effect as part of the United States Constitution. Likewise, The Eight Amendment was enforced which prevents the government from commanding excessive fines, excessive bail, and cruel and unusual punishments. The phrases in place are taken from the English Bill of Rights of 1689.


Bail is the capital requisite as insurance for the provisional release of a detainee pending trail. Bail can be denied by the governing legislature depending upon the court and the crime stated. The history of bails goes back to early Iraq where citizens were discharged from jail by having an indemnifier settle an amount in currency and to pledge that the defendant will appear in court. This deal was backed by the indemnifier collateral- such as a sheep. Moreover, stone carvings place these events to have taken place over 4,000 years ago. Like many laws in the United States, Bail laws branch from a long history of English practices. Bail structure was developed in England hundreds of years before the United States gained independence and arranged there own policies, which followed suit to the English structure. For instance, in medieval England, the sheriffs first held the authority to hold and release suspected convicts. A number of sheriffs would profit from the bail operation for their own personal gain. Established in 1275, the Statue of Westminster restricted the discretion of sheriffs with respect to the bail. Indeed, the sheriffs still had the authority to fix the amount of bail required, though the Statue decided which crimes are bail able and those that were not. In the early 17th century, King Charles I received no funds from the Parliament. In response, he forced a number of noblemen to issue him loans. Those that refused were imprisoned without bail. Five of the prisoners ordered a habeas corpus petition, a court order that requires a person that is under arrest to be brought before a judge or into court. The foundation of habeas corpus ensures that a prisoner can be released from unlawful detention lacking adequate proof. In response, Parliament introduced the Petition of Right in 1628, which guaranteed a man could not be held before trial on the basis of an unspecific accusation. In addition, the Habeas Corpus Act of 1677 strengthened the guarantee of habeas corpus by specifying that a magistrate: shall discharge prisoners from their imprisonment taking their recognizance, with one or more Surety or Sureties, in any sum according to the Magistrate’s discretion, unless it shall appear that the party is committed for such Matter or offenses for which by law the Prisoner is not bail able.

Established in 1697, the English Bill of Rights protected against judicial officers who abused bail policy by setting excessive financial conditions for release, stating that “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required.” Early American bail laws were those enacted in Virginia sustaining the bail system as it had evolved in England. Section 9 of Virginia’s Constitution in 1776 stated that “excessive bail ought not to be required.” Furthermore, in 1785, this following was added: “Those shall be let to bail who are apprehended for any crime not punishable in life or limb…but if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail.” Similarly, other state constitutions limited excessive bail for offenses in order to avoid obstruction of bail laws passed by legislatures. For instance, section 29 of the Pennsylvania Constitution of 1776 provided that “excessive bail shall not be exacted for bail able offenses.” The eighth amendment in the 1789 Bill of Rights was basically taken word for word from section 9 of the Virginia Constitution and stated “excessive bail shall not be required.” The sixth amendment to the Constitution, like the Habeas Corpus Act of 1678, insures that when arrested, a man “be informed of the nature and cause of the accusation” thereby enabling him to demand bail if he has committed a bail able offense.


Congress passed the Judiciary Act, which described what types of crimes were bail able and placed restrictions on the judges’ discretion on setting bail amount. Furthermore, the Judiciary Act states that all non-capital offenses were bail able and that in capital offenses, the decision to detain a suspect before trial was left up to the judge. The act declares,

“Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the Supreme Court or a judge of a district court, who shall exercise their discretion therein.”


The Bail Reform Act of 1966 provides that a non-capital defendant shall be ordered released pending trial on his personal recognizance or on personal bond unless the judicial officer determines that these incentives will not adequately assure his appearance at trial. That is to say, the judge must choose the least restrictive option from a list of conditions designed to secure appearance.

For those accused with a capital offense or who have been convicted and are awaiting sentencing, or appeal, are faced with a different requirement. Furthermore, they’re to be discharged unless the judge has reason to presume the defendants may flee or cause danger to another being or society.