The Eighth Amendment (Amendment VIII) to the United States Constitution is part of the United States Bill of Rights which took effect in 1791. The amendment prohibits the government from imposing excessive bail, excessive fines, and cruel and unusual punishments. The phrases employed are taken from the English Bill of Rights of 1689.


Bail is a capital required as security for the temporary release of a prisoner pending trial. Depending upon the court and the declared crime involved, bail can be legally denied by the governing legislature.

Bail laws in the United States branch from a long history of English policies. Before independence was achieved in 1776, Americans relied on the bail structure that developed in England hundreds of years earlier. After declaring independence, the United States devised their own policies, which emulated the English system. In medieval England, the sheriffs possessed the authority to release or hold suspects and determine whether to admit them to bail. Some sheriffs would capitalize on the bail system for their own gain. In 1275, the Statute of Westminster limited the discretion of sheriffs with respect to which crimes would be bailable. However, the sheriffs maintained the authority to decide the amount of bail. In the early 17th century, King Charles I received no funds from the Parliament and forced some noblemen to issue him loans. Those who refused were imprisoned without bail. Five jailed knights filed a Habeas Corpus Petition arguing that they could not be held without trial or bail. Parliament responded with the Petition of Right in 1628. The act guaranteed that man could not be held before trial on the basis of an unspecific accusation. The Habeas Corpus Act of 1677 strengthened the guarantee of habeas corpus by specifying that a magistrate: shall discharge prisoners from their imprisonment taking their recognizance, with one or more Surety or Sureties, in any sum according to the Magistrates discretion, unless it shall appear that the party is committed for such Matter or offenses for which by law the Prisoner is not bailable.

The 1697 English Bill of Rights protected against judicial officers who might abuse bail policy by setting excessive financial conditions for release, stating that 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. Excessive bail ought not to be required. Typical of the early American bail laws were those enacted in Virginia sustaining the bail system as it had evolved in England. Section 9 of Virginias Constitution in 1776 declared simply that excessive bail ought not to be required. In 1785, the following was added: 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. Other state constitutions similarly restricted excessive bail for offenses in order to prevent obstruction of 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. The eighth amendment in the 1789 Bill of Rights was practically taken word for word from section 9 of the Virginia Constitution and stated that excessive bail shall not be required. The sixth amendment to the Constitution, like the 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.


Congress passed the Judiciary Act which specified what types of crimes were bailable and set limits on the judges discretion in setting bail. The Judiciary Act states that all non-capital offenses were bailable and that in capital offenses, the decision to detain a suspect before trial was left up to the judge. The act declares, Upon 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.


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. In that case, the judge must choose the least restrictive alternative from a list of conditions designed to secure appearance.

Those charged with a capital offense or who have been convicted and are awaiting sentencing or appeal are faced with a different standard. They are to be released unless the judge has reason to believe that these defendants may flee or cause danger to another being or community.

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Orange County Bail Bonds
1043 West Civic Center Drive
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Santa Ana, CA 92703
Robert L. Miller – CA Ins. Lic.#1840710