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Trends Restricting the Right to Bail - The Constitutionality of Pre-trial Detention in Non-capital Offenses

NCJ Number
Criminal Justice Journal Volume: 3 Issue: 2 Dated: (1980) Pages: 433-450
S C Castle
Date Published
18 pages
This article examines the historical development of pretrial detention, trends in restricting the right to bail in noncapital cases, and the constitutionality of pretrial detention in noncapital cases and analyzes the impact of restrictive bail reform measures within this context.
The concept of bail existed in the United States long before the Bill of Rights was enacted by Congress in 1791. The eighth amendment in the American Bill of Rights was adopted from the English Bill of Rights of 1689 and provides that excessive bail or fines shall not be imposed. Interpretations of the U.S. Constitution and State constitutions have consistently upheld the right to deny bail in capital cases. However, attempts to expand this accepted restriction to permit denial of bail in noncapital cases present constitutional issues. Factors relevant when considering whether to grant or deny bail are (1) the probability that the defendant will appear at trial, (2) the nature of the offense, (3) the penalty for the offense charged, (4) the character of the accused, (5) the nature and strength of the evidence against the defendant, and (6) the criminal record and bail history of the defendant. Furthermore, the magistrate may impose reasonable conditions upon accused persons to insure their future availability. When legislatures place absolute restrictions on the right to bail in noncapital cases, appeals will abound based on the long history of denying bail only in capital cases. Because of the serious loss of liberty to numerous defendants as a result of the wholesale denial of bail initiated by the Nebraska legislature, and in view of the recent trend in four other States to enact similar restrictive bail measures, the U.S. Supreme Court will inevitably have the opportunity to resolve the important issue of whether there is a fundamental Federal constitutional right to bail. The article has 121 footnotes.


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