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The Supreme Court has stated that “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The Court has also held that “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” U.S. v. Salerno, 481 U.S. 739 (1987) (reserved on other grounds). (Included in study materials).

Additionally, the Eighth Amendment states that “excessive bail shall not be required.” U.S. Const. Amend. VIII. However, the courts have interpreted this constitutional provision to prohibit excessive bail without a right to bail. See Salerno at 754-55. Bail becomes excessive when courts set a higher than reasonably necessary amount to ensure that a defendant appears at trial.2


The Bail Reform Act of 1984 (“Act”) governs release or detention determinations in federal courts. 18 U.S.C. §§3141-3150 (2006). Under this Act, an authorized judicial officer may order the release or detention of a defendant pending trial. This Act applies only to criminal proceedings. See e.g., Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990)(per curiam).3 This Act may also be applied to material witnesses in criminal proceedings. 18 U.S.C. §§3144 (2006); U.S. v.


1Carrol, Lewis. Alice in Wonderland

2Stack v. Boyle, 342 U.S. 1, 5 (1951).

3Person awaiting civil deportation hearing but not awaiting trial, sentencing, or outcome of appeal on any federal criminal charges not entitled to bail hearing under Act.


Oliver, 683 F.2d 224, 230 (7th Cir. 1982);4 U.S. Hazelett, 32 F.3d 1313, 1317 (8th

Cir. 1994).5


It had often been assumed that a criminal defendant had an absolute right, except in capital cases, to be released on bail pending trial. Stack v. Boyle, 342

U.S. 1 (1951);6 U.S. v. Townsend, 897 F.2d 989, 993-94 (9th Cir. 1990);7 U.S. v.

Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999).8 Courts also held that this right is not only founded upon Rule 46 of the Federal Rules of Criminal Procedure9, and the Bail Reform Act, but also upon the constitutional guarantee of the Eighth Amendment which proves that “…excessive bail shall not be required.” U.S. v.Fiala, 102 F. Supp. 899 (W.D. Wash. 1951). Courts have further held that the Eighth Amendment’s prohibition against excessive bail also applies to the states through the Fourteenth Amendment. See Sistrunk v. Lyons, 646 F.2d 64, 66-67 (3rd Cir. 1981).


However, the courts have also spoken of a distinction between the right to bail and the right to be free from “excessive” bail. U.S. v. Edwards, 430 F. Supp. 1321, 1322-24 (D.C. 1981) (en banc). In fact, the Supreme Court declared that the Excessive Bail Clause “of course says nothing about whether bail shall be available at all.” Salerno at 752. Thus, the court have concluded that what defendants do have is a right to be free from excessive bail in those cases in which it is proper to grant bail. See Carlson v. Landon, 342 U.S. 524, 545-46 (1952).


See                         Young v. Hubbard, 673 F.2d 132, 134 (5 Cir. 1982) (regarding bail pending appeal).


See also                 Carlson v. Candon, 342 U.S. 543, 545 (1952);

Pena v. Mattox, 84 F.3d 894 (7th Cir. 1996);


  1. Court has power under Bail Reform Act to issue material witness arrest warrant.
  2. Government could detain material witness pursuant to Bail Reform Act.
  3. Defendant charged with noncapital offense shall be released on bail provided that defendant gives adequate assurance that he or she will appear at trial and submit to sentence if convicted.
  4. Courts should rarely detain defendants charged with noncapital offenses; doubts regarding propriety of release resolved in favor of defendant.
  5. Pretrial detention is difficult to impose.
  6. Bandy v. U.S., 81 S.Ct. 197 (1960).

Faheem-El v. Klincar, 841 F.3d 712 (7th Cir. 1988);

U.S. v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991).


Nevertheless, it would seem to be a superfluous gesture for the framers of our Constitution to have insisted that bail not be “excessive” if there were no right to release on bail in the first place. However, courts reason that the Eighth Amendment’s prohibition was directed merely at dissuading potential abuse of discretion by the judiciary where bail is otherwise allowed. U.S. v. Edwards, 430 F.Supp. at 1330. Such views overlook the “traditional right to freedom before conviction” embodied in the Eighth Amendment, Stack v. Boyle, 342 U.S. 1 (1952), which “underlies the entire structure of the constitutional rights” designed to protect the citizen accused of crime. U.S. v. Abrahams, 604 F.2d 386 (5th Cir. 1979).


See     Goodman v. Kehl, 456 F.2d 863, 868 (2nd Cir. 1972) (noting that there is no distinction between excessive bail and denial of bail without legitimate reason).


“The right to be free from excessive bail appears explicitly in the Bill of Rights. The right to be free from excessive bail underlies the entire structure of the constitutional rights enumerated in the Bill of Rights. This traditional right to freedom before conviction permits the unhampered preparation of the defense and serves to prevent the infliction of punishment prior to conviction. [T]he right to bail and the right to be free from excessive bail in

accordance with the Eighth Amendment to the Constitution is implemented by Rule 46 of the Federal Rules of Criminal Procedure and by 18 U.S.C.

  • 3146.” Abrahams at 393.


The act at 18 U.S.C. §3142(b) mandates pretrial release of one’s personal recognizance or an unsecured bond unless this will not reasonably “assure the person’s appearance” or will “endanger a person” or “the community”. Thus, four options are available to a Court:


  1. Release of the accused on her personal recognizance;
  2. Release on conditions;


  1. Temporarily detaining to permit revocation of conditional release, deportation or exclusion; or
  2. Detain


In making this determination the Court shall consider factors listed in 18

U.S.C. §3142(g):


  1. The nature and circumstances of the charged offense;
  2. The weight of the evidence supporting the charge;
  3. The history and characteristics of the accused including character; physical and mental condition; family ties; employment; financial resources; length of residence in the community; community ties; past conduct; history of drug or alcohol abuse; criminal history; record of appearance at court proceedings; whether the accused was on probation, parole, or release at the time of the offense; and the nature and seriousness of danger that is posed by release of the accused.
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