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.
