Eighth Amendment:

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

Bail, which is “basic to our system of law,” 1 is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.2 The issue of bail is only implicated when there is “a direct government restraint on personal liberty, be it in a criminal case or a civil deportation proceeding.” 3 In Stack v. Boyle, the Supreme Court found a $50,000 bail to be excessive, given the defendants’ limited financial resources and the lack of evidence that they were a flight risk.4 The Court determined that “the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant,” and “[u]nless this right to bail before trial is preserved, the presumption of innocence . . . would lose its meaning.” 5

In United States v. Salerno, the Court upheld the Bail Reform Act of 1984 provisions regarding preventative detention against facial challenge under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court’s role in adjudicating guilt or innocence.6 The Court held that Congress did not violate the Excessive Bail Clause by restricting bail eligibility for “compelling interests” such as public safety, and observed that the Clause “says nothing about whether bail shall be available at all” in a particular situation.7 The Court rejected “the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” 8 The Court explained that “[t]he only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.” 9 The Court determined that “detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel” satisfies this requirement.10

The Court further explained in Salerno that if the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then “bail must be set by a court at a sum designed to ensure that goal, and no more.” 11 To challenge bail as excessive, the Court held that an individual must move for a reduction, and, if that motion is denied, appeal to the Court of Appeals, and, if unsuccessful, appeal to the Supreme Court Justice sitting for that circuit.12 The Amendment is apparently inapplicable to postconviction release pending appeal, but the practice has apparently been to grant such releases.13

There is, however, no absolute right to bail in all cases.14 In a civil case, the Court held that the prohibition against excessive bail does not compel the allowance of bail in deportation cases and that “the very language of the Amendment fails to say all arrests must be bailable.” 15 Moreover, although the Court has not explicitly stated such, the Court has “assumed” that “the Eight Amendment’s proscription of excessive bail . . . [applies] to the States through the Fourteenth Amendment.” 16

Footnotes

1

Schilb v. Kuebel, 404 U.S. 357, 484 (1971).

2

Stack v. Boyle, 342 U.S. 1, 5 (1951). The Court explained that “the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” Id.

3

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n.3 (1989) (explaining that the Bail Clause guards against the potential for governmental abuse).

4

Id. at 6–7.

5

Id. at 4–5.

6

United States v. Salerno, 481 U.S. 739, 754–55 (1987).

7

Id. at 752–53.

8

481 U.S. at 753.

9

481 U.S. at 754.

10

481 U.S. at 755. The Court also ruled that there was no violation of due process, the governmental objective being legitimate and there being a number of procedural safeguards (detention applies only to serious crimes, the arrestee is entitled to a prompt hearing, the length of detention is limited, and detainees must be housed apart from criminals). Id.

11

Salerno, 481 U.S. at 754.

12

Boyle, 342 U.S. at 6–7.

13

Hudson v. Parker, 156 U.S. 277 (1895).

14

Id. at 753.

15

Carlson v. Landon, 342 U.S. 524, 544–46 (1952) (explaining that the “ Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country” and “in criminal cases bail is not compulsory where the punishment may be death” ).

16

Schilb v. Kuebel, 404 U.S. 357, 484 (1971); see Hall v. Florida, 572 U.S. 701, 707 (2014) ( “The Eighth Amendment provides that ‘excessive bail shall be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ The Fourteenth Amendment applies those restrictions to the States.” ); Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) ( “The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that '[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’” ); see also Schall v. Martin, 467 U.S. 253 (1984) (upholding under the Due Process Clause of the Fourteenth Amendment a state statute providing for preventive detention of juveniles).