During the colonial period, Americans relied upon the existing bail structure
that had evolved in England over several hundreds of years. However in 1776,
when the colonists declared their independence, they no longer depended on
English law, rather they set down policies which closely corresponded to English
tradition.
In medieval England, processes to ensure that the accused would appear for
trial began as early as the trials themselves. It wasn't until the 13th century
that the Sheriffs were allowed to determine when a defendant could be detained
for trial and when he could be released with a guarantee or a promise that
he would return to stand trial. Unfortunately, the sovereign authority held
by Sheriffs was not always equitably disseminated throughout each region. As
a result, the Statute of Westminister was established in 1275, and eliminated
the discretion of sheriffs with respect to which crimes were and were not bail-able.
It wasn't until several centuries later that bail law underwent its next major
change. Early in the 17th century when King Charles I did not receive funds
from the Parliament, he required several noblemen to issue him loans. Those
who refused were imprisoned without bail. Five knights previously incarcerated
for this offense filed a habeas corpus petition arguing that they could not
be held indefinitely without bail or trial. In court, Attorney General Heath
contended that the King could best balance the interest of the state security
along with the interest of individual liberty if he was allowed to continue
to exercise his sovereign authority to imprison. The court upheld Attorney
General Heath's argument.
In response to the King's action and the court's ruling, Parliament issued
the Petition of Right of 1628 arguing that contrary to the Magna Carta and
other laws guaranteeing that no man could be imprisoned without due process
of law, the King had recently imprisoned people before trial when no just cause
had been shown. Unfortunately, the King, the courts and the sheriffs were able
to defeat the intent of the Petition of Right of 1628 by creating various procedural
delays in granting the writs of habeas corpus. It wasn't until these procedural
delays were critically excessive that Parliament passed the Habeas Corpus Act
of 1677. The Act stated:
A magistrate shall discharge the said prisoner from Imprisonment taking his
or their Recognizance, with one or more Surety or Sureties, in any Sum according
to their discretion, having regard to the Quality of the prisoner and the
Nature of the offense, for his or their Appearance in the court of the Kings
bench&ldots;unless
it shall appear&ldots;that the Party (is)&ldots;committed&ldots;for
such Matter or offenses for which by law the Prisoner is not bail-able.
Although the Habeas Corpus Act of 1677 improved administration of bail laws,
it didn't provide any protection against excessive bail requirements. As
a result, even if a suspect was accused of a bail-able offense, he may still
be detained if the bail amount was inordinately high. As substantiation of
this abuse reached Parliament, it responded with the English Bill of Rights
of 1689. The Bill of Rights proposed to resolve this issue by proclaiming "that
excessive bail ought not to be required." Thus, the concept of the Eighth
Amendment in the U.S Constitution was drafted to prevent the accused of bail-able
offenses from exorbitantly high bail requirements. It is important to note
that while the amount of bail was addressed, it did not alter the categories
of bail-able crimes as referenced in the Statute of Westminister and clearly
did not guaranty the right to bail.
In 1789 James Madison was commissioned to prepare an initial draft for the
Bill of Rights and essentially used verbatim Section 9 of the Virginia Constitution
which provided that "Excessive bail shall not be required&ldots;." During
the congressional debates Mr. Livermore voiced his concern that this amendment
only required that bail not be excessive, but didn't provide a definition
of what constituted an excessive bail requirement.
The bail clause in the Eighth Amendment was only the first part of the structure.
The final part of the American bail structure and the basis upon which the
Constitution provisions are based is the statutory classification of justice
officials' power concerning bail and the categorization of crimes into bail-able
and non-bail-able offenses.
The Eighth Amendment forbiddance of excessive bail resolved that bail might
not be exorbitant in those cases where Congress has deemed it suitable to permit
bail. The Congress then enacted the Judiciary Act defining what offenses would
be bail-able. Habeas corpus protection was provided by Article 1 of the Constitution.
In 1966, Congress enacted the first major substantive change in federal bail
law since 1789. The Bail Reform Act of 1966 created a principle for releasing
a suspect with as little burden as necessary in order to insure his appearance
at trial. In 1969 the Judicial Council Committee studied Bail Reform Act of
1966, and was particularly bothered by the release of potential dangerous non-capital
suspects permitted by the 1966 law and recommended that even in non-capital
cases, a persons dangerousness be considered in determining conditions for
release. Congress upheld the ideals put forth in the committee's proposal and
changed the 1966 Bail Reform Act as it applied to persons charged with crimes
in the District of Columbia. With that decision by Congress came the bail system,
as we know it today.
History:
Although evolving over several centuries, modern day bail most closely resembles
the system, initially designed to keep the King's peace in medieval England,
which placed responsibility of the defendant to a tithing or even a whole township
in order to ensure that the accused would appear before the court.
Applicable
Case Law:
Taylor v. Taintor:
Decided by the courts in 1873
"When
bail is given, the principal is regarded as delivered to
the custody of his sureties. Their dominion is a continuance
of the original imprisonment. Whenever they choose to do
so, they may seize and deliver him up in their discharge,
and if that can not be done at once, they may imprison him
until it can be done. They may exercise their rights in person
or by agent. They may pursue him into another state; may
arrest him on the Sabbath; and if necessary, may break and
enter his house for that purpose. The seizure is not made
by virtue of the new process. None is needed. It is likened
to the re-arrest, by the Sheriff, of an escaping prisoner" (Emphasis
added.)
Common
Law Right To Arrest:
Additionally, modern statues provide Bail Agents with the right to arrest an
individual out on a bond. Under the Federal statute declaratory of this right,
any accused charged with a criminal offense who is released on a bail bond
with sureties may be arrested by the surety, delivered to the US Marshall,
and brought before any judge or officer empowered to commit for such offense.
At the request of the surety, such judicial officers may re-commit the accused
to the custody of the Marshall.
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- Traffic Drugs Offenses - Possession Charges
- Grand Theft - Credit Card Fraud - Domestic
- State & Federal Bonds
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Investigations
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![[ the bail agents right to arrest ]](images/agents.gif){kind=small}
