Madison County Bail - History at-a-Glance

History of Bail Bonds

 

Bail laws in the United States grew out of a long history of  English statutes and policies.   During the colonial period, Americans  relied on the bail structure that had developed in England hundreds of  years earlier.  When the colonists declared independence in 1776, they  no longer relied on English law, but formulated their own policies which  closely paralleled the English tradition.  The ties between the  institution of bail in the United States is also based on the old  English system.   In attempting to understand the meaning of the  American constitutional bail provisions and how they were intended to  supplement a larger statutory bail structure, knowledge of the English  system and how it developed until the time of American independence is  essential. 

In medieval England, methods to insure the accused would  appear for trial began as early as criminal trials themselves.  Until  the 13th century, however, the conditions under which a defendant could  be detained before trial or released with guarantees that he would  return were dictated by the local Sheriffs. x    As the regional  representative of the crown, the sheriff possessed sovereign authority  to release or hold suspects.  The sheriffs, in other words, could use  any standard and weigh any factor in determining whether to admit a  suspect to bail.  This broad authority was not always judiciously  administered.  Some sheriffs exploited the bail system for their own  gain.  Accordingly, the absence of limits on the power of the sheriffs  was stated as a major grievance leading to the Statute of Westminster.  xi 


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The Statute of Westminster in 1275 eliminated the discretion  of sheriffs with respect to which crimes would be bailable.  Under the  Statute, the bailable and non-bailable offenses were specifically  listed. xii  The sheriffs retained the authority to decide the amount of  bail and to weigh all relevant factors to arrive at that amount.  The  Statute, however, was far from a universal right to bail.  Not only were  some offenses explicitly excluded from bail, but the statutes'  restrictions were confined to the abuses of the sheriffs.  The justices  of the realm were exempt from its provisions. 

Applicability of the statute to the judges was the key issue  several centuries later when bail law underwent its next major change.  In the early seventeenth century, King Charles I received no funds from  the Parliament.   Therefore, he forced some noblemen to issue him  loans.  Those who refused to lend the sovereign money were imprisoned  without bail.  Five incarcerated knights filed a habeas corpus petition  arguing that they could not be held indefinitely without trial or bail.   The King would neither bail the prisoners nor inform them of any  charges against them.  The King's reasons for keeping the charges secret  were evident: the charges were illegal; the knights had no obligation  to lend to the King.  When the case was brought before the court,  counsel for the knights argued that without a trial or conviction, the  petitioners were being detained solely on the basis of an  unsubstantiated and unstated accusation.  Attorney General Heath  contended that the King could best balance the interests of individual  liberty against the interests of state security when exercising his  sovereign authority to imprison.  The court upheld this sovereign  prerogative argument. xiii 

Parliament responded to the King's action and the court's  ruling with the Petition of Right of 1628.  The Petition protested that  contrary to the Magna Carta and other laws guaranteeing that no man be  imprisoned without due process of law, the King had recently imprisoned  people before trial "without any cause showed."  The Petition concluded  that "no freeman, in any manner as before mentioned, be imprisoned or  detained..."  The act guaranteed, therefore, that man could not be held  before trial on the basis of an unspecific accusation.  This did not,  however, provide an absolute right to bail.  The offenses enumerated in  the Statute of Westminster remained bailable and non-bailable.   Therefore, an individual charged with a non-bailable offense could not  contend that he had a legal entitlement to bail. 

The King, the courts and the sheriffs were able to frustrate  the intent of the Petition of Right through procedural delays in  granting the writs of habeas corpus.  In 1676, for example, when Francis  Jenkes sought a  writ of habeas corpus concerning his imprisonment for  the vague charge of "sedition," it was denied at first because the court  was "outside term," and later because the case was not calendared;  furthermore, when the court was requested to calendar the case it  refused to do so.  In response to the rampant procedural delays in  providing habeas corpus as evidenced by Jenkes Case, xv  Parliament  passed the Habeas Corpus Act of 1677.  The act strengthened the  guarantee of habeas corpus by specifying that a magistrate: 

shall discharge the said Prisoner from his Imprisonment  taking his or their Recognizance, with one or more Surety or Sureties,  in any Sum according to their discretion, having regard to the Quality  of the Prisoner and Nature of the offense, for his or their Appearance  in the Court of the King's bench...unless it shall appear...that the  Party (is)...committed...for such Matter or offenses for which by law  the Prisoner is not Bailable. xvi  

By requiring early designation of the cause for arrest, the  Habeas Corpus Act provided a suspect with knowledge that the alleged  offense was either bailable or not.  The Statute of Westminster remained  the primary definition of what offenses would be eligible for bail. 

Although the Habeas Corpus Act improved administration of  bail laws, it provided no protection against excessive bail  requirements.  Even if a suspect was accused of a bailable offense and  therefore was entitled to some bail, he could still be detained if the  financial condition of release was exorbitantly high.  As evidence of  this abuse reached Parliament, it responded with the English bill of  Rights of 1689.  In the Preamble, the bill accused the King of  attempting "to subvert...the laws and liberties of the kingdom: in the  "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." xvii     The Bill of Rights proposed to remedy the situation  by declaring "that excessive bail ought not to be required." xviii   Thus, the precursor of the Eighth Amendment in the U.S. Constitution was  drafted to prevent those accused of bailable offenses from unreasonable  bail requirements.  It did not alter the categories of bailable crimes  found in the separate Statute of Westminster and certainly did not  guarantee a right to bail. 

The language of the English Bill of Rights was only one part  of the bail system developed through many years of English law.  As  Caleb Foote has explained and this analysis recounts, English protection  against unjustifiable detention contained three essential elements:  first, offenses were categorized as bailable or not bailable by statutes  beginning with Westminster I which also placed limits on which judges  and officials could effect the statue; second, habeas corpus procedures  were developed as an effective curb on imprisonment without specific  changes; and third, the excessive bail clause of the 1689 Bill of Rights  protected against judicial officers who might abuse bail policy by  setting excessive financial conditions for release.  English law never  contained an absolute right to bail.  Bail could always be denied when  the legislature determined certain offenses were unbailable.  Most of  the history of bail law after Westminster I was an attempt to improve  the efficiency of existing law and especially to grant the suspect a  meaningful chance to satisfy bail conditions when he had committed those  offenses that the legislature had declared bailable. 

In colonial America, bail law was patterned after the English  law.  While some colonies initiated their own laws which were very  similar to English statutes, others simply guaranteed their subjects the  same protections guaranteed to British citizens.  When the colonies  became independent in 1776, however, they could no longer simply insure  the protections of English law.  Accordingly, the colonies enacted  specific bail laws.  Typical of the early American bail laws were those  enacted in Virginia perpetuating the bail system as it had evolved in  England.   Section 9 of Virginia's Constitution in 1776 declared simply  that "excessive bail ought not to be required…" xix   This  constitutional provision was supplemented in 1785 with a statute which  eliminated judges; discretion to grant bail by specifying that: 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." xx  Thus the Virginia laws  closely paralleled the English system.  Statutes defined which offenses  were bailable while the Constitution protected against abuses of those  definitions.  In fact, the clause in the Virginia Constitution was  identical to the one in the English Bill of Rights which had been  included to prevent judges from unreasonable holding those accused of  bailable offenses by setting bail so high as to be unobtainable.  Other  State constitutions similarly proscribed excessive bail for bailable  offenses in order to prevent this method of thwarting the bail laws  passed by the legislatures: for example, section 29 of the Pennsylvania  Constitution of 1776 provided that "Excessive bail shall not be exacted  for bailable offenses." xxi  

With James Madison designated to prepare an initial draft for  Bill of Rights n 1789, the Virginia constitution, often referred to as  the Virginia Bill of Rights, became the model for the first ten  amendments that passed congress in 1789 and were ratified in 1791.  The  Eighth Amendment in this Bill of Rights was taken virtually verbatim  from Section 9 of the Virginia Constitution and provided that "Excessive  bail shall not be required..."   The only comment on the clause during  the congressional debates was made by the perplexed Mr. Livermore:    "The clause seems to have no meaning to it, I do not think it  necessary.   What is meant by the term excessive Bail…!" xxii 

Indeed, it seems the drafters thought relatively little about  the meaning of the bail clause; the clause was so rooted in American  and English history that to most, the meaning was obvious.  Like the  identical clause in the English Bill of Rights and the Virginia  Constitution, the Eighth Amendment bail provision was intended to  prohibit excessive bail as a means of holding suspects accused of  offenses deemed bailable by Congress. 

The bail clause in the Eighth Amendment was only one part of  the American bail structure. xxiii  As in England, the American system  also includes guarantees against imprisonment without informing the  suspect of his crime.   The Sixth Amendment to the Constitution, like  the English 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 bailable offense.  The  final part of the American bail structure and the element upon which  the Constitution provisions are based is the statutory codification of  justice officials' power concerning bail and the categorization of  crimes into bailable and nonbailable offenses.  The Constitution merely  guarantees that excessive bail may not be employed to hold suspects who  by law are entitled to bail; similarly the Sixth Amendment enables  prisoners to know if they are in fact entitled to bail under the law; it  does not give them any right to bail already existing in the law.   Thus, the legislature and not the constitution is the real framer of  bail law; the constitution upholds and protects against abuse of the  system which the legislature creates.  This principle was well  understood by the Framers of the Bill of rights.  In fact, the same  Congress that proposed the Eighth Amendment also formulated the  fundamental bail statute that remained in force until 1966.  This was  accomplished in 1789, the same year that the Bill of rights was  introduced, when Congress passed the Judiciary Act.  The Act specified  which types of crime were bailable and set bounds on the judges'  discretion in setting bail.   Following the tradition of State laws  developed during the colonial period which in turn were based on English  law, xxiv the Judiciary Act stated that all noncapital offenses were  bailable and that in capital offenses, the decision to detain a suspect  before trial was left up to the judge: 

{U}pon 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, regarding the nature and circumstance of the  offense, and of the evidence, the usages of law. xxv 

The sequence of events in the First Congress pertaining to  American bail policy is critical to an understanding of the Framers of  the Eighth Amendment and the Judiciary Act of 1789.   Only a few days  after final passage of the Bill of Rights in Congress on September 21,  1789, and before its final adoption, the First Congress passed the  Judiciary Act of 1789 on September 29, 1789.  In fact, these two  legislative measures were debated almost concurrently.  Considerable  debate time was consumed in the House of Representatives over the issue  of which should be enacted first, the bill creating a federal judiciary  and federal judicial procedures or the amendments to the Constitution.    Eventually Madison's point of view that the Bill of Rights should take  precedence so that "the independent tribunals of justice will consider  themselves...the guardians of those rights" xxvi prevailed.  But the  same day the House completed the Bill of Rights it proceeded to perfect  the Judiciary Act of 1789 which was already approved by the Senate.  The  two legislative proposals passed each other going and coming between  the House and the Senate.  This historical footnote illuminated  significantly the context in which these measures were debated.  They  were almost considered simultaneously.  Often representatives argued  that changes in one measure were unnecessary because the other provided  ample protection for vital rights. xxviii 

This context suggests strongly that the First Congress acted  very purposefully in substantially adopting the English system of  tripartite protection against bail abuses.  The Eighth Amendment  prohibition against excessive bail meant that bail may not be excessive  in those cases where Congress has deemed it proper to permit bail.  The  Congress then enacted the Judiciary Act defining what offenses would be  bailable.  Habeas corpus protection was afforded by Article I of the  Constitution. 

The argument that the excessive bail clause guarantees a  right to bail by necessary implication and that the provision forbidding  excessive bail would be meaningless if judges could deny bail  altogether in some cases is clearly not valid in this historical  context.  The same Congress which drafted the Eighth Amendment enacted  the Judiciary Act which specifically denied a right to bail to  individuals charged with capital offense. 

In the context of its legislative history, the Eighth  Amendment is illuminated by reading it in conjunction with the Judiciary  Act of 1789.   The First Congress adopted the Amendment to prevent  judges from setting excessive bail in cases prescribed as bailable by  Congress.  The same legislators then enacted a bill prescribing which  offenses would be bailable.  The Eighth Amendment, therefore, is not  self-executing.  It requires legislation creating legal entitlements to  bail to give it effect.  Recognizing this, the First Congress provided  almost simultaneously the legislation that gave the Amendment effect.   The First Congress did not choose a strange legal arrangement; it chose  precisely the system most familiar to these former English citizens.   The First Congress recognized that the Amendment was not intended to  limit congressional discretion to determine the cases for which bail  would be allowed, but was designed to circumscribe the authority of  courts to ignore or circumvent that congressional policy with excessive  bail requirements. 

The Judiciary Act of 1789 did not differentiate between bail  before and after conviction.  Not until 1946 in the Federal Rules of  Criminal Procedure was this distinction clearly made.  Rule 46 made the  1789 Act's language the standard for release, but left release after  conviction pending an appeal or application for certiorari to the  judge's discretion regardless of the crime. 

In 1966 Congress enacted the first major substantive change  in federal bail law since 1789.  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. xxviii   In that case, the judge must select the  least restrictive alternative from a list of conditions designed to  guarantee appearance.  That list includes restrictions on travel,  execution of an appearance bond (refundable when the defendant appears),  and execution of a bail bond with a sufficient number of solvent  sureties.  Individuals charged with a capital offense or who have been  convicted and are awaiting sentencing or appeal are subject to a  different standard.  They are to be released unless the judicial officer  has "reason to believe" that no conditions "will reasonably assure that  the person will not flee or pose danger to any other person or to the  community."  

The 1966 Act thus created a presumption for releasing a  suspect with as little burden as necessary in order to insure his  appearance at trial.   Appearance of the defendant for trial is the sole  standard for weighing bail decision.  In noncapital cases, the Act does  not permit a judge to consider a suspect's dangerousness to the  community.  Only in capital cases or after conviction is the judge  authorized to weigh threats to community safety. 

This aspect of the 1966 Act drew criticism particularly in  the District of Columbia where all crimes formerly fell under the  regulation of Federal bail law.  In a considerable number of instances,  persons accused of violent crimes committed additional crimes while  released on their own personal recognizance.   Furthermore, these  individuals were often released again on nominal bail. 

The problems associated with the 1966 Bail Reform Act were  considered by the Judicial Council committee to study the Operation of  the Bail Reform Act in the Distract of Columbia in May 1969.  The  committee was particularly bothered by the release of potentially  dangerous noncapital suspects permitted by the 1966 law and recommended  that even in noncapital cases, a person's dangerousness be considered in  determining conditions for release.  Congress went along with the ideas  put forth in the committee's proposals and changed the 1966 Bail Reform  Act as it applied to persons charged with crimes in the District of  Columbia.  The District of Columbia Court Reform and Criminal Procedure  Act of 1970 allowed judges to consider dangerousness to the community as  well as risk of flight when setting bail in noncapital cases.  The 1970  Act contained numerous safeguards against irrational application of the  dangerousness provisions.  For instance, an individual could not be  detained before trial under the act unless the court finds that (1)  there is clear and convincing evidence that he falls into one of the  categories subject to detention under the act, (2) no other pretrial  release conditions will reasonably assure community safety, and (3)  there is substantial probability that the suspect committed the crime  for which he has been arrested.   This last finding was an overzealous  exercise of legislative precaution.  The Justice Department testified  that the burden of meeting this "substantial probability" requirement  was the principal reason cited by prosecutors for the failure over the  last 10 years to request pretrial detention hearings under the  statute.   Such a standard also had the effect of making the pretrial  detention hearing a vehicle for pretrial discovery of the Government's  case and harassment of witnesses.   Moreover, the District of Columbia  Court of Appeals in its Edwards xxix decision strongly suggests that the  probable cause standard consistently sustained by the Supreme Court as a  basis for imposing "significant restraints on liberty" would be  constitutionally sufficient in the context of pretrial detention. 

x
xi
xii Edw. 1. C. 15 In additional to capital  offenses, the list included "Thieves openly defamed and known" those  "taken for House-burning feloniously done," or those taken for  counterfeiting and many other non-capital offenses.
xiii "Five Knights Case" or "Proceedings on the Habeas Corpus" brought by Sir Thomas Darnel. 3 St. Fr. 1 (1627).
xiv William Duker, "The Right to Bail: An Historical Inquiry" 64, 42, Albany L. Rev. 33 (1977).
xv
xvi 81 Car. 2 c. 2.
xvii W. & M. st 2 c. 2 preamble clause 10.
xviii 1 W. & M. st. 2 c. 2. Rights clause 10.
xix 7 American Charters 3813 (F. Thorpe ed.. 1909)
xx 12 Va. Stat. 185-86 (W. Hening ed.. 1823)
xxi 7 American Charters 3813 (F. Thorpe ed..1909)
xxii 1 "Annals of Congress" 754 (1789).
xxiii  Caleb Foote, "The Coming Constitutional Crisis in Bail." 113  Pennsylvania L. Rev. 959. At 968 (1965). Hermine Herta Meyer, "The  Constitutionality of Pretrial Detention,: 60 Georgetown L. Rev. 1139  (1972).
xxiv Duker. Supra note 14 at 77-83
xxv The Judiciary Act of 1789, 1 Stat. 73, 91.
xxvi 1 "Annals of Congress" 428, 462 (1789)
xxvii Id. At 448.
xviii the Bail Reform Act of 1966, 18 U.S.C. 3146 et seq.
xxix United States v. Edwards, No. 80-294 (D.C. App. May 8, 1981) (slip opinion). Petition….