Excessive Bail Shall Not Be Required, and What the Founders Meant by It

Six words in the Bill of Rights have been quoted by people who have never read the rest of it. "Excessive bail shall not be required." They appear in rallies, op-eds and legislative hearings on both sides of the bail debate, usually in service of whatever the speaker already wanted. The clause deserves better. It is a compact piece of constitutional engineering with a long history, and if you read it as the men who wrote it did, it gives neither side the slogan it wants.

Let me start with the text, then the history, then the cases, and then say what the clause does and does not demand of a state that decides to do away with cash bail.

The text and what it leaves out

The Eighth Amendment, ratified in 1791 as part of the Bill of Rights, reads in full:

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

Three things are worth noticing. First, it is written as a prohibition on excess and not as a grant of a right to be released. It does not say "all persons shall be bailable." It says that when bail is required, it shall not be excessive. Second, it does not define "excessive." That word calls for a judgment, and the judgment must be made against some purpose. Third, it is the same sentence that bars cruel and unusual punishment, which tells you the Founders were thinking about a single danger: the government using its power over a person's liberty or property in a way out of proportion to any legitimate end.

If you want to know what the clause meant, you must ask what bail was for. And the answer is not in the word "excessive." It is in the history.

The English inheritance

The clause was copied, nearly word for word, from the English Bill of Rights of 1689, the statute that settled the terms on which William and Mary took the throne after the Glorious Revolution. That statute declared, among its list of rights, that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Americans reached for the language because they knew the story behind it.

That story begins with the Crown's power to lock up subjects without a trial. Medieval English law already allowed release on bail, by sureties who promised to produce the accused, and the Statute of Westminster of 1275 listed which offenses were bailable and which were not. By the seventeenth century the problem was that the king's officers could imprison a man on the royal command and then refuse to say why or let him out. In 1627, in what is known as Darnel's Case or the Five Knights' Case, the king's judges upheld the imprisonment of gentlemen who had refused to pay a forced loan. Parliament answered with the Petition of Right in 1628, and in 1679 with the Habeas Corpus Act, which gave prisoners a way to force a court to examine the cause of their detention.

Those two ideas, a right to be brought before a judge and a right to be released on reasonable security if the charge allowed it, were the foundation. But a judge could still defeat the right by setting bail so high that the prisoner could not meet it. The 1689 declaration closed that loophole, at least in principle: bail set to keep a man in jail, rather than to secure his appearance, was an abuse. The prohibition on excessive bail was a prohibition on using money as a disguised detention order.

That is the first lesson of the history. The English did not abolish the power to hold a defendant. They forbade using a price tag to do it by stealth.

The American tradition: a right to bail and a power to hold

The colonies absorbed the English rules and refined them. The Massachusetts Body of Liberties of 1641 had bail provisions. William Penn's Frame of Government for Pennsylvania in 1682 provided that prisoners should be bailable by sufficient sureties, unless the offense was capital and the proof evident or the presumption great. That formula, bail for everyone except those charged with the gravest crimes when the evidence is strong, became the pattern. It reappears in state constitutions across the early Republic and survives in many of them to this day.

The Founders, then, did not imagine a world without detention before trial. They imagined a world in which the ordinary rule was release on reasonable security, and the exception was detention for the most serious offenses on a strong showing. Liberty was the norm, and the carefully limited exception was the judge's power to hold.

This is the second lesson, and it is the one both modern camps tend to forget. The progressive who says the clause creates an absolute right to pretrial release has to explain why the Founders' own states excluded capital cases. The conservative who says the clause lets a judge hold anyone he fears has to explain why the Founders wrote a clause aimed at precisely that abuse.

The Judiciary Act of 1789

If you want the clearest evidence of how the generation that wrote the Bill of Rights understood bail, look at what the same First Congress did in the same year. The Judiciary Act of 1789, which organized the federal courts, included a provision on bail. In substance it said that upon all arrests in criminal cases, bail should be admitted, except where the punishment might be death. In capital cases, bail could be admitted only by the Supreme Court, a circuit court, a justice of the Supreme Court or a district judge, who would exercise their discretion.

Notice the structure. In non-capital federal cases, bail was a matter of right. In capital cases, release was committed to a judge's discretion. That is the American tradition in a single section: a presumption of release for ordinary offenses, and the power to hold for the gravest, exercised by a judge and not by a clerk or a prosecutor. The same Congress that drafted the Eighth Amendment passed a statute built on the same assumptions, and it is hard to read the one as hostile to the other.

Stack v. Boyle (1951)

The Supreme Court's first major modern word on the clause came in Stack v. Boyle, 342 U.S. 1 (1951). The case arose out of a federal prosecution of leaders of the Communist Party under the Smith Act. A district court set bail at the same high amount for each of a dozen defendants, without looking at the circumstances of any one of them. The Court, in an opinion by Chief Justice Vinson, held that this was not allowed.

The reasoning is the heart of the matter. Bail, the Court said, serves a single purpose: to assure that the defendant appears for trial. The right to release before trial, it explained, preserves the presumption of innocence and permits the defendant to prepare a defense without having been punished in advance. Bail set at a figure higher than the amount reasonably calculated to secure the defendant's appearance is "excessive" under the Eighth Amendment. And because the amount must be fitted to the purpose, it has to be determined for each defendant, on facts about that defendant, not fixed by the category of the charge.

Two points follow. One: Stack defines excess by reference to the purpose of bail, and the purpose it identified was appearance at trial. It was not asked whether a court could consider danger to the community, because in 1951 the federal bail statutes did not provide for it. Two: the opinion insists on individual assessment. A schedule that assigns one price to every defendant charged with the same offense, whatever his ties to the community or his history, sits uneasily with that demand.

The Bail Reform Acts of 1966 and 1984

For a long time the federal system lived with the assumption that bail was about flight and nothing else. The Bail Reform Act of 1966 was a product of the movement against money bail's unfairness to the poor. It directed federal judges, in non-capital cases, to release defendants on their own recognizance or an unsecured appearance bond unless that would not reasonably assure appearance, and it let the judge impose conditions short of money. It was a reform with an honorable aim, and it kept to the Stack view that the only legitimate question was whether the defendant would come back to court. It did not allow a judge to consider whether a released defendant would hurt someone in the meantime, except in certain capital cases.

That gap bothered judges and legislators for the next two decades, as everyone watched defendants commit new offenses while awaiting trial. Congress answered with the Bail Reform Act of 1984, part of the Comprehensive Crime Control Act of that year. The new law, codified largely at 18 U.S.C. 3142, authorized a federal judge, after a hearing, to order a defendant detained before trial if no condition or combination of conditions would reasonably assure the appearance of the person and the safety of any other person and the community. It listed factors for the judge: the nature of the charge, the weight of the evidence, the defendant's history and characteristics, and the danger posed by release. It required the government to prove the need for detention by clear and convincing evidence where dangerousness was the ground. The statute turned on its head the assumption that the Constitution protects only against flight risk.

United States v. Salerno (1987)

The 1984 Act was challenged at once, and the case reached the Supreme Court as United States v. Salerno, 481 U.S. 739 (1987). Anthony Salerno was a reputed organized crime figure charged with racketeering. His lawyers argued that holding him because he was dangerous violated due process, because it was punishment before trial, and violated the Eighth Amendment, because it denied bail altogether.

Chief Justice Rehnquist, for a six-justice majority, rejected both arguments. On due process, the Court held that the detention was regulatory rather than punitive: the government's interest in preventing crime by arrestees is legitimate and compelling, and the Act's procedural safeguards, a prompt adversary hearing, counsel, the chance to present evidence, a finding by clear and convincing evidence, and review on appeal, were enough. On the Eighth Amendment, the Court held that the clause says nothing about whether bail must be available at all, only that bail, when allowed, must not be excessive in light of its purpose, and that the government's interest in safety could be a legitimate purpose. Rehnquist wrote one sentence that deserves memorizing:

In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.

Justice Marshall, joined by Justice Brennan, dissented, with a charge that detention on a prediction of future conduct was incompatible with the presumption of innocence. Justice Stevens dissented separately. Their warning has not gone away, and it is one reason a conservative who prizes liberty should insist that any detention power be hedged with real procedure.

Notice the combination in the holding: a power to detain for danger, and a limited, hearing-based, evidence-based process for exercising it. The Court did not say that a judge may hold anyone he finds frightening. It said that a legislature may authorize detention of the dangerous after a proper hearing. That is the Founding bargain, restated.

The strongest objection, answered

Let me state the best version of the case against what I have said, as a defender of the broad right to release would.

The objector says: money bail has in practice punished poverty. A defendant who can afford the price goes home and a defendant who cannot sits in jail for weeks, perhaps loses a job and a home, and may plead guilty to get out. This pressure, the objector argues, makes the presumption of innocence hollow. The Founders' tradition, on this view, was about securing appearance with the least burden, and a system that jails people for lack of cash has strayed from it. Preventive detention, the objector adds, is an invitation to abuse, because predicting dangerousness is imprecise.

It is a serious argument, and part of it is right. A bail system that detains by accident of wealth is arbitrary, and Stack v. Boyle itself condemns a one-size amount. If the price of freedom is set without asking whether it is necessary to secure appearance, the system fails the test of the Eighth Amendment's own purpose.

But follow the argument to its end and it does not reach the conclusion the objector wants. One: the cure for arbitrary money bail is to ask the right question of each defendant, whether this person will appear and whether this person is dangerous, not to forbid the question. Two: the Founders' tradition paired release with a power to hold; a system that has no way to hold a person charged with a violent felony and a strong record of violence has abandoned half the tradition. Three: a detention hearing with counsel, evidence and a written finding is a more transparent safeguard than a bail schedule, because it makes the judge say why. Four: the rule that detention is the carefully limited exception is a rule for the judge, not an excuse for the legislature to forbid detention.

Honest reformers and honest conservatives meet here. Both should prefer an individualized hearing to a price list.

What the clause requires of states that end cash bail

Here is the question many readers actually came for. Some states have moved away from cash bail, replacing it with release by default and detention hearings. Does the Constitution allow it?

The Eighth Amendment's text prohibits excessive bail; it does not command that money bail exist. The Court has applied the clause against the states through the Fourteenth Amendment's Due Process Clause, as it has done with other Bill of Rights guarantees, and in Timbs v. Indiana in 2019 it incorporated the neighboring Excessive Fines Clause. The Constitution therefore does not require any state to use cash bail, and a state that abolishes it commits no violation of the clause by itself.

What the Constitution does require is set by Salerno and the Due Process Clause. A state that detains before trial must give the defendant a hearing with real procedural protections and a standard of proof. A state that abolishes cash bail but forbids its judges to consider danger is not violating the Eighth Amendment, but it has made a policy choice the Founding tradition does not support, a choice that leaves the judge unable to hold someone he has good reason to hold. The argument against such laws is not constitutional. It is a policy argument made on constitutional ground: that a legislature can allow detention of the dangerous, and the Founders' states did, and a legislature that takes the power away from judges has taken away something that protects the public. I make that argument in The Case Against Cashless Bail Starts With the Victim, Not the Defendant and compare the alternatives in Three Ways to Decide Who Waits for Trial in Jail, Side by Side.

Why the history still matters

The reason to read old clauses is that they tell us what our ancestors feared, and what they decided not to fear. They feared a government that could put a man in a cell without a reason and call it procedure. They did not fear a judge who, after a hearing, with evidence, held a man charged with a grave crime. That distinction, between the arbitrary and the accountable, is a theme running through the whole Bill of Rights, from the Fourth Amendment's warrant requirement to the Sixth's right to counsel. For the broader constitutional design of criminal procedure, see Twelve Strangers, How Trial by Jury Crossed the Atlantic to America.

It also tells us who should decide. The Founders put the power in judges, who are named, bound by law and subject to appeal. They did not put it in a market of bail bondsmen, and they did not put it in a formula that no one can question. An accountable judge, exercising limited power under a clear rule, is the Founding answer to the problem.

Read the text for yourself at the Constitution page. The clause is short, and the arguments about it are long, which is usually a sign that the authors knew what they were doing.

The case in brief

1. The Eighth Amendment forbids excessive bail but does not say who must be released; it was copied from the English Bill of Rights of 1689, which aimed at judges who used high bail as a disguised detention.
2. The American tradition from Pennsylvania in 1682 to the Judiciary Act of 1789 paired a right to bail in ordinary cases with a judge's power to refuse it in capital cases when the proof was strong.
3. Stack v. Boyle (1951) holds that bail must be fitted to its purpose and decided individually, and the Bail Reform Acts of 1966 and 1984 moved federal law from flight alone to flight and danger.
4. United States v. Salerno (1987) upheld preventive detention after a hearing with real safeguards, on the principle that liberty is the norm and detention the carefully limited exception.
5. A state may end cash bail without violating the clause, but a law that removes a judge's power to weigh danger departs from the Founding tradition and has to be argued against on policy grounds.

What you can do: read the bail and pretrial release provisions of your own state's constitution, which you can find on your legislature's website, and see whether your state keeps the old exception for serious offenses.