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 reason 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 Edwardsxxix 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….
|