Bail Flashcards
What amendment requires bail be given?
None. There is no constitutional requirement to have bail
The Eighth amendement requires that bail, if given, should not be excess
What Amendment Governs Bail?
Eighth Amendment - “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments used”
When is Bail Excessive?
Bail set higher than that necessary to assure that the defendant will stand trial and submit to sentence if found guilty, is excessive under the Eighth Amendment
Stack v Boyle
Is it unconstitutional to deny bail and order detainment?
No. Detention is constitutional because:
it is not punishment, it’s an administrative detention and therefore not a deprivation of liberty.
and
It advances a newly (in the instant case) recognised legitimate government interest in public safety for which one maybe denied bail (under the new law)
Salerno contested a ruling of detention under the Fed. Bail reform act
Salerno
What did the Federal Bail Reform Act do?
Allowed for Federal Judges to order:
1. Release on Recognisance
2. Bail with conditions
3. Temporary Detainment
4. Detention
The act provides requirements for when each can be imposed
18 USC 3142
What kind of cases can the judge authorise pretrial detention?
- When the crime involves violence or long term imprisonment (life, death or 10+ for drugs)
- When there is evidence the person will flee, cause harm to the public or obstruct justice
What must the judge find before ordering pretrial detention?
That there are no combination of conditions that would ensure the return to face judgement or the safety of the community
What factors must the court consider before giving detention?
- The weight of the evidence
- The facts of the person (if they’re a flight risk, if they have disappeared before, on parole?)
- The nature and seriousness of the danger to the public if they are released
