How the U.S. Bail System Started
Understanding the bail system requires more than watching daytime reruns of your favorite law drama. While many television shows provide a condensed version of reality, they get a lot wrong.
If you want to truly understand how the bail system works, you need to go back a few hundred years.
The Origins of the U.S. Bail System
The modern bail system arose in 1677 with the English Parliament. Back then, the English government needed money for their various military campaigns and city improvement projects, but they also had an overabundance of criminals. So, the two were combined. Parliament introduced the Habeas Corpus Act, which allowed local magistrates to set bail terms for criminals within their counties.
In 1689, the English Bill of Rights was expanded to declare “excessive bail” to be unlawful and unjust. Eventually, Virginia’s constitution and later the Eighth Amendment of the U.S. Constitution included similar restrictions on excessive bail.
The Eighth Amendment states that persons arrested must be “informed of the nature and cause of the accusation” against them and be offered bail for a bailable offense. The Judiciary Act of 1789 stated that all noncapital offenses would be considered bailable. For capital crimes, the opportunity to post bail was ultimately up to the presiding judge.
In 1966, the U.S. Congress passed the Bail Reform Act—the first change to the system since its inception. The act allowed defendants to secure quick jail release for as little financial burden as possible. This practice was later expanded upon in the Bail Reform Act of 1984, which prevented discrimination against the poor.