The History of Bail in the United States

Bail reform is like road construction in Boston.  It has been happening since at least 1625.  Maybe that is why it has been so controversial to call the New Jersey State Legislature back to session on a Monday in August to put in on the November ballot.

The nature of bail

Bail is essentially monetary security (cash, a bond, or property) that defendants must pay to the court in exchange for their release from jail. The money is returned if they appear for all of their required court appearances, with the goal of ensuring that defendants will return to court to participate in their trial.

The principle of bail is addressed in the U.S. Constitution. Under the Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” However, the circumstances under which bail is required tend to change with time.

The history of bail reform

In the early days of our country, Congress passed the Judiciary Act of 1789, which established that bail must be set in all crimes not punishable by death. The statute specifically states: “Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”

In the early twentieth century, critics of the bail system argued that too much focus was placed on the defendant’s crime and ability to pay. In the seminal 1951 case of Stack v. Boyle, the U.S. Supreme Court agreed, stating that “bail must be set after a factual review of each defendant’s circumstances and may not be excessive.”  The court later held in Bandy vs. United States that “pretrial detention due solely to the indecency of the defendant is a clear denial of the Fourteenth Amendment.”

In 1966, Congress enacted the first federal guidelines for setting bail with the goal of preventing the unnecessary detention of indigent defendants. The Bail Reform Act of 1966 created a presumption of release, which could be rebutted with evidence that the defendant was likely to flee in order to avoid prosecution.

The 1980s brought yet another philosophical shift. Under the Comprehensive Crime Control Act of 1984, courts were authorized to also consider whether a defendant might pose a danger to the community when determining whether to order pretrial release. The statute also set forth specific circumstances under which defendants could be denied bail, such as capital offenses, violent offenses and repeat felony offenses.

NJ legislature’s proposed changes

The New Jersey Constitution echoes the federal prohibition of excessive bail. But it also states the following: “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.”

New Jersey’s current bail reform measures would amend the state constitution to authorize courts to order pretrial detention in some situations. The amendment specifically states:

“Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.”

The intent of the change is to prevent defendants from perpetrating new crimes while out on bail as well as reduce the fugitive rate. “We need to give judges the discretion to look at a defendant’s record and say enough is enough,” Gov. Chris Christie said in favor of the change. “Judges will not take this lightly. The taking of someone’s liberty is one the most difficult and gut-wrenching decisions they have to make.”

Accompanying legislation (S-946) would made several other key changes to the state’s criminal justice system. Most notably, defendants facing non-violent or lessor charges would not be required to post any bail, but rather could be subject to non-monetary conditions of release. The measure is intended to ensure that indigent defendants charged with minor crimes do not spend months in jail awaiting trial because they cannot afford bail.


Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. The History of Bail in the United States