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Know your rights: The Eighth Amendment


AMENDMENT VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Many focus on the "cruel and unusual punishments" aspect of this amendment, but no less important is the provision related to bail. Bail is money or property posted as security to obtain release from incarceration and to ensure appearance at hearings. If you don't show up, you can lose the money or the property you've posted. Federal and state laws set the conditions pursuant to which bail is granted.

While you're innocent until proven guilty by the State - the presumption of innocence - the State must also balance your individual liberty with the potential threat you pose under the circumstances of the allegations of the State against the individual. Thus, bail is intended to protect your rights as a prisoner, your liberty under restraint, both before trial and perhaps after conviction.

In Stack v. Boyle (1951), the Supreme Court held that any amount of bail beyond what is necessary to ensure appearance at court was excessive. That provided little practical guidance to courts. In 1984, Congress passed the Bail Reform Act that permitted federal courts to deny bail on the basis of other qualitative factors, such as the dangers posed by the defendant. This practice was defined as "preventative detention" and ultimately survived legal challenges in the landmark case known as U. S. v. Salerno (1987).

That doesn't mean that, if bail has been set, you don't have any options. Bail can be reduced on motion of an attorney and for good reasons set forth under law and rules that apply to criminal procedure. If you face criminal charges, know your rights. Call an attorney.

John C. Kaspar, Esq., GRAY AND DUNING, (513) 932-2871.

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