Section 6.2: Bail and Pretrial Release

Fundamentals of Procedural Law by Adam J. McKee

Bail and pretrial release, as processes in the American criminal justice system, play instrumental roles in securing an individual’s right to liberty and fair treatment under the law. Both practices have evolved from historic roots and are guided by constitutional principles. This discussion seeks to expound on the history, significance, and constitutional considerations surrounding these concepts.

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Historical Perspectives on Bail and Pretrial Release

The concept of bail can be traced back to medieval England, where it was developed as a method to prevent the unjust imprisonment of individuals accused of crimes while waiting for their cases to be adjudicated. It was a system predicated on trust, where individuals pledged their properties or valuables as an assurance of their return to court.

The idea of bail crossed the Atlantic with the English colonists, and it became an integral part of the legal system in the United States. The advent of the U.S. Constitution saw the incorporation of bail rights in the Eighth Amendment, which stipulated that “excessive bail shall not be required.”

Pretrial release, as we understand it today, emerged in the 20th century as part of efforts to reform the bail system. The Manhattan Bail Project in the 1960s pioneered this, demonstrating that defendants with community ties were likely to appear in court even without monetary bail. This reform recognized that the bail system, despite its intentions, often led to the detention of the poor who couldn’t afford bail, thus necessitating a more equitable approach.

Constitutional Principles Governing Bail and Pretrial Release

Several constitutional principles guide bail and pretrial release, most notably derived from the Eighth Amendment and the Fourteenth Amendment.

The Eighth Amendment specifically addresses bail, prohibiting the imposition of excessive bail. This clause does not guarantee the right to bail but limits the amount to prevent it from becoming punitive or leading to pretrial detention simply because an individual cannot afford the set amount.

The Fourteenth Amendment also impacts pretrial release and bail through its Equal Protection and Due Process Clauses. These principles prevent discriminatory bail practices based on race, gender, or socioeconomic status, and require fair procedures in setting and reviewing bail, respectively.

However, the U.S. Supreme Court has not interpreted these constitutional provisions as providing an absolute right to bail. Instead, bail is seen as discretionary, balanced against considerations like the nature of the offense, the risk of flight, and public safety.

In conclusion, bail and pretrial release in the U.S. criminal justice system have evolved through centuries, drawing upon English common law traditions and adapting to the changing societal context. These practices, while constitutionally guided, continue to balance individual liberty interests with the societal need for order and justice.

Case Law

The Eighth Amendment of the U.S. Constitution, which prohibits excessive bail, significantly influences bail and pretrial release. We will highlight three Supreme Court cases to further our understanding.

Stack v. Boyle (1951)

Stack v. Boyle, 342 U.S. 1 (1951) focused on the matter of excessive bail.

The Facts: Twelve defendants charged with conspiracy to violate the Smith Act had bail set at $50,000 each.

Legal Issue: The question was whether the bail amount was excessive, violating the Eighth Amendment.

Court’s Decision: The Supreme Court found the bail amount excessive.

Rationale: The Court held that bail should be set according to individual circumstances, and its purpose is to ensure the defendant’s court appearance, not punishment (Stack v. Boyle, 1951).

Schilb v. Kuebel (1971)

The case of Schilb v. Kuebel, 404 U.S. 357 (1971), discussed the concept of refundable bail.

The Facts: In Illinois, a percentage of cash bail was retained by the court, even if the accused made all required court appearances.

Legal Issue: The issue was whether this retention of a percentage of cash bail violated the Fourteenth Amendment’s Equal Protection Clause.

Court’s Decision: The Supreme Court ruled that it did not violate the clause.

Rationale: The Court found that there was a rational basis for this procedure—it provided a cost-effective and efficient way for courts to ensure attendance (Schilb v. Kuebel, 1971).


Bail and pretrial release, cornerstones of procedural law, are substantially influenced by the Eighth Amendment’s prohibition against excessive bail. Supreme Court cases like Stack v. Boyle, Schilb v. Kuebel, and Hernandez v. United States have contributed to shaping our understanding of these concepts, emphasizing individualized bail, the right to bail in non-capital cases, and the rational basis for bail procedures.


Modification History

File Created:  08/06/2018

Last Modified:  07/24/2023

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