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History of Bail

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While the concept of posting something of value to assure a person accused of a crime appears for trial stems from ancient Rome, the laws concerning bail in the United States have their roots in 1,000 year-old English law. Prior to 1275, English law required the person charged with a criminal offense post a sum equivalent to the fine imposed if the court determines the person is guilt of the crime. Due to abuses of this bail system, the English Parliament established criteria for determining bail in the first Statute of Westminster in 1275. These criteria include the following: 1. the nature of the offense committed; 2. the probability the accused will be convicted of the crime; and the criminal history of the person charged with the crime. The British people who colonized the New World brought these laws concerning with them.

Bail during the Colonial Era and the Early Years of United States

In 1641, Massachusetts passed the Body of Liberties, which codified the right to bail for those accused of non-capital offenses. In 1642, Pennsylvania expanded the availability of the option for bail indirectly by limiting death penalty cases to those involving “willful murder.” The Pennsylvania approach to bail soon became the model for the other colonies until 1776. While conditions for bail are not directly specified in the United States Constitution, the Eighth Amendment prohibits the imposition of “excessive bail” on the accused. In 1789, the Judiciary Act, in Section 33, established the right to bail for those accused of non-capital offenses.

Bail Reform during the 20th Century

In 1966, Congress made reform to the bail process by passing the Federal Bail Reform Act. This legislation afforded those charged with non-capital offenses with the ability to be released on their own recognizance. These laws additionally established the terms for conditional pretrial release and restrictions on the administration money bonds. Due to concerns about crimes being committed by those released from jail while awaiting trial, Congress passed the Bail Reform Act of 1984. This law allowed judges to take into consideration the risk the accused poses to the community if released from jail until his or her court date as well as the person’s flight risk.

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