What is Excessive Bail?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
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  • Last Modified Date: 18 March 2020
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The term “excessive bail” comes up most commonly in the legal system in the United States. Excessive bail is a bail amount which is deemed unusually and unreasonably high, given the circumstances. This usually comes up in the context of bail set for minor crimes. If a defendant believes that bail is excessive, she or he can make a motion for reduction of bail. It is potentially possible for excessive bail to be used as the grounds for a case in which someone argues that his or her civil rights were infringed upon.

The origins of this concept lie in England, where historically sheriffs were allowed to determine when defendants should be bailed, and to set the amount of the bail. Concerns arose about abuse of power, however, as sheriffs were sometimes inconsistent. As a result, the government passed laws determining which sorts of offenses were bailable, and the concept of excessive bail grew out of this. When the Constitution of the United States was being drafted, the Eighth Amendment included a specific protection against excessive bail.


By law, when a judge sets bail in a case, he or she can weigh the circumstances to determine an appropriate amount. Bail must be high enough that there is a genuine incentive for the defendant to return for trial, but it cannot be so high that the defendant has no reasonable expectation of raising the funds. Even if a defendant does have the money, the bail amount cannot be disproportionate to bail amounts set for similar crimes. For example, two people accused of the same crime with the same degree of flight risk shouldn't have differing bail amounts.

The concern with a high bail amount is that the bail could be so high that the defendant is forced to remain in jail while awaiting trial, even though she or he should be entitled to the opportunity to pay bail and be released. Likewise, high bail could be used to penalize or intimidate. For example, a juvenile offender charged with committing a minor nuisance crime who is asked to pay a bail of $400,000 United States Dollars (USD) could argue that she or her is being unfairly treated.

Lawyers who regularly work in court on criminal cases are generally familiar with bail amounts. If a lawyer feels that a client is being asked to pay a bail amount which is unreasonable, he or she may make an argument that excessive bail is being asked, and demand that the court reduce the bail amount.


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Post 3

Staying locked up for two weeks would be a vacation compared to having our license suspended for failure to pay, tickets that are excessive for things like not having enough money to pay registration, or pay parking tickets, going 65 in a 55 and tags were expired and I have to pay $500, and no seat belt (I had taken it off to adjust something) and expired tags, $800, expired tags $800. The more I pay, the more they find some old tickets. If I pay them all that would be my driving budget for the next four years. Either way, I would not be able to drive.

Post 2

My daughter was taken in for failure to appear on a ticket for being in a park after hours. She arrested in handcuffs, but the worse part is her bail is $100,000! While there are known drug dealers in this neighborhood they are concerned with a 19 year old girl missing a court date. What is wrong with this country and the Orange County Court system?

Even the arresting officers thought this was a typo! They confirmed that she failed to appear on a ticket for being in the park after hours. That is it!

I've gone through the online system and can't find one other offender with a bail amount that high!! And I can't even find out what

has become of her. They keep referring me to their website for updates – it's like kidnapping! My faith in our system has diminished vastly!

Now I am beginning to understand why so many people do not trust “the system.” I have become one of them, and I’ve only had three traffic tickets in my life!

Post 1

Most legal advocates are so out of touch with reality that they really think that just because it is written that we have certain rights, makes it so.

In reality the only people who have those rights are the ones that can afford to enforce them. The rest of us can argue with the wall in our jail cell that we are being treated unfairly but unless we can raise the $100,000 bail, we stay locked up for the next two weeks until our next court date.

It doesn't matter that you're charged with something that doesn't usually allow a person the be released on their own recognizance; there is no one to tell - no way to have this injustice corrected.

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