The Eighth Amendment of the Constitution declares that “There shall be no excessive bail.” This means that the courts cannot set a bail amount that is more than reasonably calculated in order to ensure that the defendant will return to court to face their charges. The Eight Amendment applies to the federal courts while the Fourteenth Amendment makes the same provision for state and local courts.
Today, many jurisdictions are overlooking the main purpose of the Amendment: to get the defendant into court for trial. The reason behind bail is simply to make sure that the accused will stand before the court to be found guilty or innocent. The secondary point of the Amendment is to guarantee that the defendant is given a fair bail amount in direct proportion to the crime.
Setting bail at a reasonable amount keeps things fair for the defendant, but it is also important for the jurisdictions to avoid setting the amount too low. The most important reason for bail to be set is to give a financial liability to the defendant to guarantee their return to court.
So, there are two sides to the Eight Amendment: that bail must be set at a fair amount, but it cannot be set too low. With excessive bail, defendants do not have an equal chance of being released prior to trial. On the other hand, when it is not high enough, there is a higher risk to society. This is evidenced through studies of defendants released on their own recognizance (OR) who fail to appear at a higher rate and also commit more crimes while they are released.
Compared to defendants who have been released on a financially secured bail bond, defendants released on OR are less likely to return to court because they are under no financial obligation to do so. There is also no system in place that will keep track of the person once released on OR, as opposed to a bail bond release where the bondsman keep track of the defendant’s whereabouts through regular check-ins.
When too many criminals are released without strict measures, that can lead to an increase in crime in the community. For this reason, stricter bail conditions must be utilized to protect citizens as well as uphold the Eight Amendment.
However, too many jurisdictions are implementing lax approaches to bail, some because they have no choice and others because they have a limited amount of knowledge about the bail bond system.
For many, there are concerns that most defendants will be unable to pay for a bail bond if the bail amount is too high. To avoid violating the Eighth Amendment (or the Fourteenth Amendment on a state/local level), they choose to set lower bail amounts or to release too many accused offenders without the liability of full bail.
The thought that most defendants will be unable to afford a bail bond is a misconception, however. Members of the bail bond industry recognize the financial strain that many people are under and work hard to find a solution for each individual in order to make it easy for them. Some adjust pricing models, offering payment plans and financing to help meet the needs of the defendant.
The exceptions to this process are typically people who are transients, with no home, no income and no ties to the community. Also, if the defendant has absolutely no one they can turn to in the community, no friends or family because they have turned away from them.
The judge is responsible for determining the qualifications of each defendant when setting bail. The highest bail amounts are reserved for the most serious offenses or for those who are considered a flight risk.
The commercial bail bond industry strives to work in partnership with the courts and lawmakers in order to help ensure that the Eighth Amendment is upheld while at the same time protecting the community from offenders.