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What About Bail?

W. Scott Cole

Posted on April 12, 2019 19:04

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The Eighth Amendment of the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” How closely do we follow those limitations on government power when the courts set bail?

Like the other amendments in the Bill of Rights, the eighth is not something that the government has allowed us to have, or granted us. The ten amendments of the Bill of Rights were set into words by the Founding Fathers to limit the government and to let the people know that these are rights that the government was not to be allowed to encroach on.

The problem with the Eighth Amendment, at least insofar as bail is concerned, lies in the definition of “excessive”.  As with many words, the definition changes over time. In the judicial system, that definition, in Black’s Law Dictionary, is “Tending to or marked by excess, which is the quality or state of exceeding the proper or reasonable limit or measure.” Not really much help is it?

In today’s courts, bail is pretty much on a matrix; if you are charged with this crime, your bail is this amount. The courts don’t take into account the financial status of the person charged. The question of bail is not given an individualized assessment, although it should be.

If a person that makes $200,000 is charged with a crime and the court sets his bail at $50,000, it can’t be called excessive. He makes that much every three months. He can post bail and go back to his job and home, and other than court dates, his life continues as usual until the case is resolved.

If a person who makes $30,000 a year is charged with the same crime, his bail is still $50,000. It takes him almost two years to make that much money. Chances are, he can’t pay bail and has to stay in jail until the case is resolved. Even if charges are dropped a couple months down the road, his life has just been destroyed. He will leave jail with no job, no place to live, and no car. For him, it is excessive bail.

That is why bail needs to be determined in an individualized hearing, with any amount that destroys a life being excessive. The Eighth Amendment surely didn't intend “excessive bail” to be determined by a preset standard depending on what crime a person is charged with.

The intention of bail is to ensure that the person charged will appear in court when the judge orders, so that he will not lose the amount of money he has posted. For that reason, bail should be high enough to give a person incentive to appear in court.

Rather than bail being set according to the crime charged, a better system would be based on how much the person makes. For the person making $200,000 a year, his bail could double. It might be tough, but he can post it. For the person making $30,000, his bail could be $15,000. Again, it would be tough, but he has a better chance of posting it and far less chance of an entire life being destroyed.

W. Scott Cole

Posted on April 12, 2019 19:04

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