Bail is a pretty basic idea. A form of property is pledged or deposited to a court to have a suspect released from jail, inferring that the suspect will return to court for trial. If the suspect fails to appear they forfeit said property or “bail” and get charged with failure to appear on top of what they were already accused.

The Eighth Amendment is where the specifics of bail come into play. This amendment in the U.S. Constitution is part of the Bill of Rights. It prohibits the Federal Government from imposing excessive bail, fines, cruel or unusual punishment on its citizens. While bail isn’t always a guarantee (for certain crimes it isn’t allowed) it is protected by the Eighth Amendment. It protects the right to prepare a defense while out on bail. Protection from excessive bail and fines also makes sure there are enough funds or collateral available to be able to pay for the defense. It’s known throughout history that paying for a defense isn’t cheap, especially with a serious charge.

One reason that bail is protected by the constitution is because in the distant past, it wasn’t. Once upon a time the Sherriff was the one to make the final decisions on fines and punishments, and they had a tendency to abuse their power. Parliament decided in 1275 that they would pass a statute that there would be bailable and non-bailable offenses. Of course, early on, it was normally almost impossible to make bail because it wasn’t at all regulated. Judges set impractically exorbitant amounts of bail. In 1689 the English Bill of Rights was adopted to stop this corruption. The Eighth Amendment adopted into the Bill of Rights in 1791 is almost identical to its counterpart in the English Bill of Rights of 1689. The English Bill of Rights of 1689 stated “excessive bail ought not be required.” Although it never did describe what “excessive” meant, the Eighth Amendment has been interpreted to mean that the bail should meet the offense. Today almost all crimes are “bailable” but there are still times when the amount of bail demanded borders on excessive. That’s why there are bonds. With a bond, you don’t have to pay an arm and a leg for your crime.

So what else is covered under the eighth amendment? Along with the rule against cruel and unusual punishment, there are also stipulations in the Eighth Amendment that there are punishments that are never allowed regardless of crime. The bill forbids the execution of mentally handicapped persons as well as persons under the age of 18, as neither would understand their punishment.