Samuel Wiseman


bail, Eighth Amendment


This Article examines the history and judicial interpretation of the Eighth Amendment's Excessive Bail Clause, which reads "excessive bail shall not be required." Debate on this topic has centered around two questions: whether the Clause binds only the courts or Congress as well and whether it creates any substantive right to bail. Specifically, the Article discusses the Bail Reform Act of 1984, and the Supreme Court's subsequent interpretation of the Act in United States v. Salerno. The Salerno court suggested that the Excessive Bail Clause limits only the judiciary and found, at a maximum, only an extremely limited substantive right to bail. After providing a history of the Excessive Bail Clause, interpretation prior to Salerno and Salerno itself, the Article argues that the Excessive Bail Clause protects defendants from governmental discrimination and coercion. It concludes by describing how these protections and constitutional purposes of the Clause were eliminated with the enactment of the Bail Reform Act of 1984 and Salerno.



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