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The 8th Amendment and Bail.....

robert38-55robert38-55 Senior MemberPosts: 3,621 Senior Member
.... Lift that barge, tote that bail, get a little drunk and ya go to Jail!!!! These are the words of a song I remember singing when I was in elementary school. Kinda of catchy ain't it?

Well anyway I would like to discuss the 8th Amendment that deals with ..."excessive bail shall not be imposed"..... The way I read this (and correct me if I am wrong) the 8th Amendment has been interpreted by the Federal Courts to mean "that persons accused of non-capital crimes have a right to bail, but persons accused of capital crimes do not have a right to bail." The way I understand it is the sole 8th Amendment right regarding bail, is that 'bail' not be excessive. What is defined and considered excessive? I am sure that "excessive" is determined in light of all the circumstances surrounding the matter and cannot be given a fixed amount.

I know some state that have passed laws or adopted constitutions that guarantee the right to bail in every case of an offense against that state's criminal law wether it is capital or non-capital. The theory is that the Constitution in prohibiting exessie bail impliedly means ther must be bail of some sort.

Being out on bail is important to our system guaranteeing a fair trial,preparing a defense, and not punishingaccused person in jail in violation of those rights. If a state or the Federal Government wanted to detain a person of interest before trail, then wouldn't excessive bail have the same effect as no bail? I mean if one can't raise a lot of bail money, one might just have to remain in jail. I am sure that some of the accused persons would argue that excessive bail is better than no bail, in hopes that even the excessive bail can be raised.

Now here is the real issue: Isn't this an instance where a state law seems to be in conflict with the US Constitution as interpreted by the federal courts yet it is not unconstitutional. I always thought that the 8th Amendment gives individuals a personal right and if a state chooses to increase the scope of that right, it is free to do so. A state may enlarge personal freedoms, but may not reduce them. The very concept of bail is as old as history itself,but doesn't have the same status as it holds today.
"It is what it is":usa:

Replies

  • CaliFFLCaliFFL Senior Member Posts: 5,486 Senior Member
    ....Now here is the real issue: Isn't this an instance where a state law seems to be in conflict with the US Constitution as interpreted by the federal courts yet it is not unconstitutional. I always thought that the 8th Amendment gives individuals a personal right and if a state chooses to increase the scope of that right, it is free to do so. A state may enlarge personal freedoms, but may not reduce them. The very concept of bail is as old as history itself,but doesn't have the same status as it holds today.

    I believe the founders used the word "excessive" intentionally, for the exact reasons you stated above. Similar to "cruel and unusual punishment". Both ambiguous statements allow for discretion by the people and the judicial branch. "Excessive" is dictated by the nature of the crime and at the hearing, a judge hears both sides before setting bail. I think that is as fair as it can get.

    A state may enlarge personal freedoms, but may not reduce them.


    I'm not sure why you think this. It is my understanding that the polar opposite is true. Just look at state gun laws and medical marijuana laws.
    When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.

    Adam J. McCleod


  • TeachTeach Senior Member Posts: 18,428 Senior Member
    It's "Load that barge- - - -lift that bale"- - - - -as in cotton bale! "Old Man River", some of the best musical theater ever.

    Bail is a basic part of our justice system's assumption of "Innocent until proven guilty". In other legal systems where guilt is assumed, and innocence must be proved, there would be no reason to allow a prisoner to go free until trial.
    Jerry
  • robert38-55robert38-55 Senior Member Posts: 3,621 Senior Member
    Teach wrote: »
    It's "Load that barge- - - -lift that bale"- - - - -as in cotton bale! "Old Man River", some of the best musical theater ever.

    Bail is a basic part of our justice system's assumption of "Innocent until proven guilty". In other legal systems where guilt is assumed, and innocence must be proved, there would be no reason to allow a prisoner to go free until trial.
    Jerry

    Thanks Teach !!!!!!!!!!!!! I was making an allegory and a satire out of our justice system. Let me offer this hypothectical situation:
    ... If a person has committed a crime,lets say its a non violent Federal crime like getting caught with 100lbs of cocaine. This person got bail, and is now out.This same suspect is "innocent until proven guilty" and while out on bail, this person now commits both a state crime and a Fedral crimes such as rape, or kidnapping. The question I have is the original bail revoked, and current bail denied or is it soley the decision of the courts, to offer bail, Now remember what we said " Innocent until proven Guilty" I might be confussed on this 8th Amendment issue, but isn't bail denied on all Capital crimes, yet the SCOUS says that the states have the aurthority to issue bail?
    There's no way that the judge could have known or predicted that this person who was originally caught with the drugs, when released on bail,was going to committ another crime. It's hard to prove intent.
    "It is what it is":usa:
  • robert38-55robert38-55 Senior Member Posts: 3,621 Senior Member
    CaliFFL wrote: »
    I believe the founders used the word "excessive" intentionally, for the exact reasons you stated above. Similar to "cruel and unusual punishment". Both ambiguous statements allow for discretion by the people and the judicial branch. "Excessive" is dictated by the nature of the crime and at the hearing, a judge hears both sides before setting bail. I think that is as fair as it can get.





    I'm not sure why you think this. It is my understanding that the polar opposite is true. Just look at state gun laws and medical marijuana laws.

    To me when a state enlarges a persons right means that some restriction has been lifted off that person. For example if a person has been denied the right to buy a gun, due to some issue in the past and now that person has been cleared of that issue and their gun buying rights restored to full status, then isn't that "enlarging a persons rights?"
    "It is what it is":usa:
  • TeachTeach Senior Member Posts: 18,428 Senior Member
    From my limited experience observing some of my brother's clients (he's a criminal defense attorney) the provisions of the granting of bail require the suspect to "abide by all laws" or similar language. Bail can be revoked and the suspect jailed if he/she commits another crime while out on bail, even if the two crimes are unrelated.
    Jerry
  • CaliFFLCaliFFL Senior Member Posts: 5,486 Senior Member
    To me when a state enlarges a persons right means that some restriction has been lifted off that person. For example if a person has been denied the right to buy a gun, due to some issue in the past and now that person has been cleared of that issue and their gun buying rights restored to full status, then isn't that "enlarging a persons rights?"

    Ok, I get your meaning.

    I would call that "restoring a person's rights", instead of enlarging. po-tay-to, po-tah-to:up:
    When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.

    Adam J. McCleod


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