Right to Fair Bail – 8th Amendment

The 8th Amendment to the United States Constitution protects a defendant’s right to fair bail.  What this means in practice is that bail should be used for legitimate purposes only. That purpose is to secure the defendant‘s appearance at all scheduled hearings.

The State cannot use bail for other purposes.  For instance, the State cannot use bail as means of raising money for the State.  Nor can the State use bail as a means of punishment.  After all, there is a presumption of innocence at this stage of the criminal proceedings.  Finally, the State cannot use excessive bail in order to keep the defendant in confinement as the State attempts to gather evidence.

The purpose of bail is to prevent the defendant from fleeing.  This is the sole legitimate purpose for bail.  As such, the Court should consider the likelihood of flight in its determination of bail.  The Court will consider such factors as the defendant’s prior criminal history, the seriousness of the crime, the possible penalties, the defendant’s roots in the community, the defendant’s prior cooperation with law enforcement along with other considerations depending upon the circumstances of the case.

The bail hearing is very important.  This is particularly so in felony cases but should not be taken lightly even in misdemeanor cases.  It is best to consult with an attorney  in advance of the hearing so that the attorney may know the defendant’s circumstances so that reasonable and legitimate bail arguments may be made to the Court.

In the absence of preparation, an excessive or cash only bail may be set leading to the confinement of the defendant for the duration of the criminal proceedings.    This outcome is rarely necessary to secure the defendant’s appearance.  It is up to the defendant, generally through legal an attorney, to convince the Court that it is not necessary in his or her case.

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