The Rights of the Accused before Trial

The Eighth Amendment is much shorter than the Fifth and Sixth, and its importance with regard to the pretrial phase lies in its first six words: "Excessive bail shall not be required." This is the only mention of bail in the Constitution, but it has long been understood to imply that the accused has a right to bail--not a right to pretrial release, but a right to have bail set.

Under the system of bail, the judge determines an amount of money which the accused, or persons associated with him, must turn over to the court in order to secure his release from incarceration prior to trial. This money will be refunded at trial, but if he fails to show up in court, a warrant will be issued for his arrest, and the money will be forfeited. Bail is an extremely old idea, as can be seen from the story of Damon and Pythias in ancient Syracuse. Pythias was accused of a crime and sentenced to death, but wished to be temporarily released in order to settle his affairs. His friend Pythias put up the ultimate form of security: himself. When Pythias returned to face his sentence, the king was so moved by this example of friendship that he freed both men.

In the modern system of bail, the security requirement is not nearly so dramatic as in the case of Damon and Pythias. Usually it is a sum in the thousands of dollars, but nonetheless this is, like the fees of legal counsel, often beyond the ability of indigent detainees to provide. This has led to a system of bail bonds, which are purchased from a private company for a fee much smaller than the bail requirement, usually ten percent of the total. The bail-bond company in turn presents the court with the money for security.

Although the Court in Stack v. Boyle (1951) referred to the "traditional right to freedom before conviction," there has been much debate over whether bail is in fact a right to be guaranteed in all situations. If the court judges the accused to be dangerous, or deems him a particular risk for flight ("jumping bail"), it may refuse to release him, or it may set bail so high as to be prohibitive. In some cases, the accused may be released on recognizance--that is, the honor system.

In any case, where bail can be obtained, it affords the accused the opportunity, with the help of legal counsel, to prepare his defense for the pending trial. As for the trial itself, it must be "speedy," as guaranteed in the Sixth Amendment, meaning that the accused cannot simply be left to languish in a jail cell for months upon months without trial. Nonetheless, the defense may choose to forestall the trial for many reasons, including the opportunity to gain further evidence.