The Founding Fathers incorporated many common law principles, traditions and concepts into the legal structure of the new nation. So it was no real surprise that bail - which had been a common law staple for nearly a thousand years - wound up being included in the Bill of Rights where the 8th Amendment states unequivocally that “Excessive bail shall not be required…” Today, there is a robust debate underway over just what constitutes “excessive bail”. With more than a few people wondering if the wording of the 8th amendment leaves room for bail amounts to be negotiated.
If the constitution prohibits the use of excessive bail as a means to deny someone their freedom then certainly bail amounts should be open to negotiation. Because what’s reasonable for one person may well be excessive for someone else. Right?
Well, as with many things having to do with the justice system, bail bonding isn’t all that black and white. It might be possible to petition for a reduction in bail, but it’s not the bail agent who decides. It’s the court. And they look at a number of factors when setting bail amounts, including:
Once the court has weighed all these factors and any others it feels may be relevant the judge will decide whether or not to reduce bail. If the person is not considered a danger to the community, has ties in the area, has a clean record and can demonstrate that the requested bail would be burdensome a reduction may be granted.
There are a lot of people who claim that bail bonds should be eliminated. To bolster their argument they point to the number of people of limited financial means in jail awaiting trial who are only there because they couldn’t afford bail. What these arguments almost never mention however, is that many of these people are repeat offenders and/or those who have jumped bail in the past. Which means the court is finished being lenient with them. Whereas they may have convinced the judge to reduce their bail the first time around, their plea will fall on deaf ears the 2nd, 3rd and 4th time.
One thing a lot of people are unaware of is that the court can, if it decides it’s appropriate, actually increase the amount of bail. And in some cases the judge will deny bail altogether. For instance, Gary Ridgway, the infamous “Green River Killer” was denied bail after being arrested because he was deemed both a high flight risk and a clear danger to the community. While that’s an extreme example the fact is that it is not uncommon for the court to increase or deny bail in some circumstances.
Those who see some wiggle room in the wording of the 8th Amendment are correct. It has long been established that judges have the right to set, increase, decrease or deny bail as they see fit. Therefore, if you have been arrested and feel that bail has been set too high, your attorney can petition the court to reduce or even eliminate bail and allow you to be released on your own recognizance. The important things to keep in mind are A) the more convictions you have the less likely you are to obtain a reduction, B) the nature of the crime you are accused of will also play a part in the decision and C) you will need to demonstrate financial hardship.