When granted by federal or state law, it is the right to release from jail or other government custody through the bail process. Technically, it is typically the “right to non-excessive bail,” which goes to the reasonableness of the conditions placed on any particular defendant’s release. The United States Constitution does not have an explicit right to bail clause, but that right is contained in the federal statute. Many states have right to bail clauses, even if that right has been limited for certain cases.
Some argue, incorrectly, that the right to bail means only the right to have bail set. This argument ignores clear statements by the United States Supreme Court indicating that the right to bail normally means a right to pretrial freedom, such as the following two statements from Stack v. Boyle: (1) “federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”*; (2) “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.”**). The argument also conflicts with the following seminal statement from United States v. Salerno: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”***
The legal structure of the right to bail differs among the states. Nine states, like the federal system, have no right to bail articulated in their constitutions. Approximately twenty one states have “traditional” and fairly broad right to bail provisions, which were modeled after Pennsylvania’s law of 1682. The remaining states have amended their constitutions to allow for preventive detention in various ways.
*342 U.S. 1, 4 (internal citation omitted) (emphasis added).
**Id. at 7-8 (concurring opinion).
***481 U.S. 739, 755 (1987).