The text of the Eighth Amendment Excessive Bail Clause derives from the 1689 English Bill of Rights, redacted in the Virginia Declaration of Rights and recommended by the Virginia ratifying convention. The English version used the words “excessive bail ought not to be required” as opposed to the amendment’s “excessive bail shall not be required,” the latter reflecting James Madison’s insistence that the amendments be legally enforceable and not merely hortatory. When considering the amendment, one member of Congress stated that he thought the wording unclear. Nevertheless, Congress approved the language by a strong majority, perhaps because its phrasing had such a solid pedigree.

The excessive bail clause of the 1689 English Bill of Rights had been a response to the judicial practice of setting bails high in particular instances to avoid having to release defendants on writs of habeas corpus (see Article I, Section 9, Clause 2), an abuse, like the Parliamentary bill of attainder, that targeted certain defendants because of their political leanings.

In both English and American practice, the level of bail is determined on a case-by-case basis. The court often takes into account the character of the charged offense and the previous behavior of the defendant. The Supreme Court has declared that a bail amount would be “excessive” under the Eighth Amendment if it were “a figure higher than is reasonably calculated” to ensure the defendant’s appearance at trial. Stack v. Boyle (1951); see also United States v. Salerno (1987). Procedurally, the defendant must file a motion for reduction in order to contest a bail as excessive.

The wording of the Excessive Bail Clause seems to point to a preexisting right to bail. In fact, absent weighty circumstances, American courts have generally presumed that each defendant has a right to liberty pending trial by payment of bail. But that right turns out not to be particularly fundamental as the courts have been deferential to legislative exceptions. Carlson v. Landon (1952). In British practice, most serious crimes were in fact nonbailable. See Hunt v. Roth (1981). In America, many colonial charters and state constitutions, as well as the Northwest Ordinance of 1787 and the Judiciary Act of 1789, guaranteed a right to bail but made exception for capital offenses. More recently, the Supreme Court has approved a state statute allowing pre-trial detention of some juveniles. Schall v. Martin (1984). In Salerno, the Court upheld the pretrial detention provisions in the Bail Reform Act of 1984 that applied to persons who were arrested for serious crimes and who might pose a danger to the community, allowing for a more personalized judgment of who is entitled to bail that is arguably contrary to the original understanding of the Excessive Bail Clause. Based on the Bail Reform Act, a federal district court has upheld detention without bail of persons with alleged terrorist connections. United States v. Goba (2003).

Scholars have debated the extent to which the clause restricts Congress as well as the judiciary. In Salerno, the Court declared that the government may pursue particular “compelling interests through regulation of pre-trial release,” but it expressly left open the question of “whether the Cruel and Unusual Punishment Clause speaks at all to Congress’s power to define the classes of criminal arrestees who shall be admitted to bail.”

Up until the case of McDonald v. City of Chicago (2010), the Supreme Court had not authoritatively applied the prohibitions on excessive bail to the states through the Due Process Clause of the Fourteenth Amendment, although in Schilb v. Kuebel (1971), Justice Harry Blackmun for the majority noted that the Court has “assumed” that the prohibition has been incorporated. In McDonald, Justice Samuel Alito left no doubt. After finding that “almost all of the provisions of the Bill of Rights” have been incorporated, Justice Alito, who delivered the opinion of the Court, included the Eighth Amendment’s prohibition against excessive bail in a list of those rights that have been affirmed as judicially enforceable against the states. Perhaps because there may have been uncertainty whether the Excessive Fines Clause had been fully incorporated, earlier federal courts found that a state judge had imposed an excessive fine only if it had been arbitrary, a standard that would have been applicable in any event under the Fourteenth Amendment’s Due Process Clause. See, e.g., United States ex rel. Savitz v. Gallagher (1992). Other federal courts, on the assumption of incorporation, have limited the right against excessive bail to pretrial situations. Thus, the denial of bail pending appeal, for example, would not be in violation of the Excessive Bail Clause. See Garson v. Perlman (2008).