Criminal Procedures

The Criminal Process

How does a court determine if bail is excessive?

A court examines whether the bail amount is much higher than the state interests involved in setting bail in the first place. As a practical matter, constitutional-based challenges to bail (arguing that the bail violates the “Excessive Bail” clause of the Eighth Amendment) are not very successful. The more successful challenges are that a court did not follow the state or federal statute providing for bail. Under the federal law known as the Bail Reform Act of 2004, a judge “shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”


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