History of Bail

The bail system is a centuries-old practice that was established to allow an arrested person to be released from jail until his or her trial began. This post details some of the history of bail and how it has been tailored to the American court system.


To uncover the history of bail in America, you have to go back much further in time. The bail system was developed during the Middle Ages in Anglo-Saxon England as a way to settle disputes peacefully. The accused person had to find another party to serve as a "surety" for them; someone who would agree to pay the settled-upon amount to the victim if the defendant fled. This system didn't actually require any money to change hands. The defendant simply had to show that they would pay the settlement if necessary.

Bail became an official system when the English parliament passed the Habeas Corpus Act in 1677. The Habeas Corpus Act allowed court magistrates to set the terms for bail to encourage defendants to return for trial. In 1689, the English Bill of Rights included a restriction against excessive bail, which inspired the Eighth Amendment to the US Constitution, which prohibits excessive bail as well as cruel and unusual punishment.

A hundred years later, the United States passed the Judiciary Act of 1789, which determined that all crimes that did not carry the possibility of the death penalty were applicable for bail. After this legislation was enacted, bail laws remained largely unchanged for the next two centuries, until 1966, when the US Congress passed the Bail Reform Act. The Bail Reform Act was created to allow defendants to be released with as small a financial burden as possible. This act was created in response to the bail system being biased against the poor and causing jails to be over filled with defendants who should be out on bail. 

In 1984, US bail laws were revised again. The previous Bail Reform Act had loopholes that allowed dangerous suspects to be released if they didn't appear to be flight risks. The new Bail Reform Act of 1984 allowed judges to determine whether defendants would be dangerous to the community. It also established additional categories of defendants who could be held without bail, including those charged with serious crimes, repeat offenders, and flight risks. 

While momentum still continues to build around US bail law reform, and while the bail system can vary from state to state, the basic concepts remain the same. The goal of bail is to allow certain individuals accused of crimes to be released from jail prior to their court hearings. For more information, see How Bail Bonds Work. As always, if we can help you or a loved one navigate the bail system, contact us for a Free Consultation today.


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