Excessive Bail


A legal term of art used to describe bail that is unconstitutional pursuant to the Eighth Amendment to the United States Constitution (or similar state provisions). The Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Excessive Bail Clause derives from reforms made by the English Parliament in the 1600s to curb the abuse of judges setting impossibly high money bail to thwart the purpose of bail to afford a process of pretrial release. The English Bill of Rights of 1689 first used the phrase, “Excessive bail ought not be required,” which was incorporated into the 1776 Virginia Declaration of rights, and ultimately found its way into the United States and many other state constitutions.

Excessiveness must be determined by looking both at federal and state law, but a rule of thumb is that term relates overall to reasonableness. In United States v. Salerno, the Court stated as follows:

The only arguable substantive limitation of the Bail Clause is that the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil. Of course, to determine whether the Government’s response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing ight, bail must be set by a court at a sum designed to ensure that goal, and no more. Stack v. Boyle, supra. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.*

Thus, to determine excessiveness, one must “look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests. The state may not set bail to achieve invalid interests [flight and public safety are valid; at least one federal court has held that the state’s interest in setting bail at a level designed to prevent the arrestee from posting it is invalid, see Wagenmann v. Adams, 829 F.2d 196, 211-14 (1st Cir. 1987), and bail as punishment would also undoubtedly be an invalid state interest], nor in an amount that is excessive in relation to the valid interests it seeks to achieve.”**

The law of Stack v. Boyle is still strong: when the state’s interest is assuring the presence of the accused, “[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the Eighth Amendment.”*** Nevertheless, as the language in Salerno indicates, financial conditions (i.e., amounts of money) are not the only conditions vulnerable to an excessive bail claim. Any unreasonable condition of release (e.g., a nonfinancial condition having no relationship to reducing or ameliorating an identified risk, or that exceeds what is needed to assure the constitutionally valid state interest) might be deemed constitutionally excessive.****

*481 U.S. 739, 754 (1987).
**Galen v. County of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (internal citations omitted).
***342 U.S. 1, 5 (1951).
****See, e.g., United States v. Polouizzi, 697 F. Supp. 2d 381, 388 (E.D.N.Y 2010) (“The excess can be reflected in monetary terms or in other limitations on defendant’s freedom such as curfews, house arrests, limits on employment, or electronic monitoring.”).

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