"An arrested person can usually be

released after putting up an amount

of money known as bail. The purpose

of bail is to assure the court that the

defendant will return for trial. A con-

stitutional right to bail is recognized

in all but the most serious cases, such

as murder.

Bail may be paid directly to the

court. The entire amount may be

required, or in some places, the defen-

dant may be released after paying just

a portion of the total amount (for

example, 10 percent). If a person

released on bail fails to return, the

court will keep the money. If the

defendant does not have the money, a

bond company may put up a bail bond in exchange for a fee. For

example, a defendant with bail set at $2,000 might be released after

paying $200 to the bond company. If a bond is posted, the bond com-

pany will be required to pay the amount of the bond to the court if

the defendant does not report for trial.

The Eighth Amendment to the U.S. Constitution states that "exces-

sive bail shall not be required." However this does not specify how

much is excessive, and a poor person unable to raise any money could

be detained in jail before trial or conviction. Some people consider

this unfair, and some courts and legislatures have developed pro-

grams to release defendants without requiring any money.

To be eligible for release on personal recognizance, or personal

bond, the defendant must promise to return and must be con-

sidered a low risk of failing to show up for trial. In determining

the likelihood of the defendant's return, judges consider factors

such as the nature and circumstances of the offense and the

accused's family and community ties, financial resources,

employment background, and prior criminal record.

In addition to personal recognizance programs, courts may

set other nonmonetary conditions designed to ensure the

return of the defendant. These conditions include placing the

defendant in the custody of a third party or requiring the defen-

dant to maintain or get a job, to reside at a certain address, or to

report his or her whereabouts on a regular basis.

Despite the advantages of these programs, there can be problems in

releasing defendants, even though they have not yet been found guilty of

the crime with which they have been charged. Statistics indicate that

a large number of defendants commit crimes while out on bail.

To be eligible for pretrial

release, a defendant must be

considered a low risk of failing

to show up for trial. What

factors should a judge consider

when determining whether a

defendant will return for trial?

"Excessive bail

shall not be required,

nor excessive fines

imposed, nor cruel and

unusual punishments

inflicted."

Eighth Amendment to

the U.S. Constitution

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158 UNIT 2 Criminal Law and Juvenile Justice

As a result, some people argue that get-

ting out on bail should be more diffi-

cult. In 1984, Congress passed the Bail

Reform Act, which can prevent someone

from being freed on bail if he or she is

charged with a federal felony offense

and believed to be dangerous. For this

to occur, there must be a hearing, and

the person being denied bail must have

been charged with a violent crime or a

drug offense. In addition, the individual

must have been convicted of a felony

more than once. While the Supreme

Court has upheld the Bail Reform Act as

constitutional, most states have not

adopted similar legislation.

Supporters of pretrial release say that

it prevents punishment prior to convic-

tion and gives defendants the freedom

to help prepare their cases. Supporters

also claim that the U.S. justice system

rests on the presumption that defen-

dants are innocent until proven guilty

and that setting high bail or holding a

person in jail before trial goes against

that presumption."

1. What is the purpose of the constitutional right to protection from excessive bail?
2. How does the exclusionary rule work?
3. Why do you think the Supreme Court adopted the exclusionary rule?
4. What is the good faith exception to the exclusionary rule?
5. What are some arguments in favor of the good faith exception? Against it?