Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment VIII:

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

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail ( as was the doctor accused of causing the death of a pop musician (

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 ( as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “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.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story ( describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

William C. Duncan is director of the Marriage Law Foundation ( He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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April 4, 2012

Essay # 33


1 reply
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    When you stop and think about the stories you hear or read coming out of countries in the middle east regarding arrest and bail or punishments inflicted before your trial, you should gain a new appreciation for our system.


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