The concept of bail originally developed in Medieval England where local sheriffs were authorized to detain or release suspected criminals. However, many of these sheriffs abused their authority and exploited bail payments for their own personal gain. In 1275, the first restrictions were placed on sheriffs by the Statute of Westminster. Sheriffs retained the power to determine the amount of bail, but it established a list of bailable and non-bailable offenses. Later, the English Bill of Rights included a provision that expressly forbids excessive bail for persons arrested and charged with a crime. This provision would influence the American conception of bail.
The Constitution of Virgina
The United States, as a colony of England, was subject to similar bail laws as England. After declaring independence in 1776, the colonies that had not previously ratified bail laws did so. The Consitution of Virgina echoed similar sentiments as the English Bill of Rights, outlawing excessive bail and later added a clause declaring all noncapital crimes as bailable. The eighth amendment to the United States Constitution was strongly influenced by the Virgina Constitution’s treatment of bail.
Judiciary Act of 1789
The same year the Bill of Rights was proposed, 1789, the United States also passed a law known as the Judiciary Act of 1789. The Act outlined which crimes would be bailable and which would not. All noncapital crimes were made bailable, and bail was left to the discretion of the presiding judge in capital cases.
Bail Reform Act of 1966
The Bail Reform Act of 1966 provided statutory relief where constitutional rights were lacking. While the United States Constitution guarantees the freedom from excessive bail, it does not provide the right to bail. The Act made it so judges had to grant bail unless they believed that the defendant would not return to stand trial. Only in cases of capital crimes were judges allowed to consider the danger to the public that releasing a defendant from the custody of law enforcement would pose.
US Code, Title 18, Sections 3141-3150
In 1984, Congress replaced The Bail Reform Act of 1966 with United States Code, Title 18, Sections 3141-3150. This law allowed judges to consider the danger that releasing a defendant may pose to the community. Additionally, this law established a list of defendants that are subject to have their request for bail denied. Defendants who are repeat felony offenders, considered a flight risk, likely to intimidate witnesses, or who have committed violent crimes, crimes punishable by life in prison or certain drug offenses may all be denied bail.