Cash Bail: A Second Jail for the Poor? by the Hon. Joseph A. Migliozzi Jr. and Heather A. Wong Introduction to Bail The framers of the United States Constitution were well acquainted with the ancient practice of bail when they drafted the Bill of Rights. Under the Eighth Amendment, “Excessive bail shall not be required, nor ex-cessive fi nes imposed, nor cruel and unusual punishments infl icted.” 1 The bail clause prohibits bail that is exces-sive. Indeed, the framers’ main con-cern in drafting the bail clause was to safeguard against unreasonably high bail. The fundamental purpose of bail, which was to guarantee an accused’s appearance at trial, was uncontrover-sial in early America. Yet, the practice of bail is currently the subject of a nationwide debate. Hence, a persist-ing issue at the heart of current bail reform in the U.S. remains to be re-solved in Virginia: Should the accused who is unable to purchase his freedom with a bail payment be held in jail pending trial? 24 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION History of Bail In order to understand current bail reform in the U.S., as well as signifi cant issues related to this element of criminal justice, it is essential to know the history of bail and “key themes” from that history. 2 Bail originated in order to solve an issue still confronted today—the need to balance the equities of the accused’s general right to pretrial freedom with society’s interests in preventing criminals from fl eeing and ensuring the punishment of wrongful acts. 3 Though U.S. legal tradition and ideals establish the importance of liberty before tri-al, it is worth noting the differences between past and current bail practice. 4 Modern U.S. bail law has “deep histori-cal roots” in Anglo-Saxon custom and law. 5 During the Anglo-Saxon period (410-1066) in England, bail originally developed as “a means of settling disputes peacefully.” 6 In addition, because “jail facilities were impractical,” Anglo-Saxon law allowed for the release of the accused 7 conditioned upon fi nding a surety who would assume responsibility for ensuring the defendant’s court appearance and who, otherwise, would agree to pay the victim the settled amount if the defendant absconded. 8 www.vsb.org Shutterstock.com