The History of Bail in The United States

The United States' bail system is evolved from a system developed in England during the Middle Ages. In 1677, the English Parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates, not sheriffs, would set terms for bail. 12 years later, the English Bill of Rights of 1689 declared restrictions against "excessive bail" which later inspired the Virginia State Constitution and the Eighth Amendment to the United States Constitution.

The Sixth Amendment to the Constitution states that all people under arrest must "be informed of the nature and cause of the accusation" they face. It also allows a person to demand bail if he or she is accused of a bailable offense. However, American bail law is actually rooted in legislation. The Judiciary Act of 1789 stated that all non-capital offenses (crimes that did not carry the possibility of the death penalty) were bailable. In the case of capital crimes, the possibility of bail was at the judge's discretion. The act also placed limits on judges' powers in setting bail -- thinking back again to the English Bill of Rights' prohibition against "excessive bail".

Bail law in the United States essentially remained unchanged from 1789 until 1966. In that year, responding to the bias of the bail system against the poor, and how jails were being filled by people who should be out on bail; the U.S. Congress passed the Bail Reform Act of 1966, which was designed to allow for the release of defendants with as small a financial burden as possible.

The next major revision to U.S. bail law came 18 years later, with the Bail Reform Act of 1984, which replaced its 1966 predecessor. While the previous Reform Act had helped to overturn discrimination against the poor, there were serious loopholes that allowed many dangerous suspects to receive bail as long as they didn't appear to be flight risks. This new law stated that defendants should be held until trial if they're judged dangerous to the community. The law also established new categories of who could be held without bail -- mostly those charged with very serious crimes, repeat offenders, the potentially dangerous and anyone who might be a flight risk. And finally, the act stated that those who were eligible for bail must be given a bail hearing.

The bail system has since flourished, providing defendants awaiting trial the opportunity to lead essentially normal lives, at the same time giving courts assurances that protections against a defendants' failure to appear are adequately provided for.