Despite the fact that many times more defendants are subject to cash bail and pretrial detention than face the death penalty or life without parole, the Eighth Amendment’s prohibition against cruel and unusual punishments has been the subject of far more litigation and scholarly attention than the Excessive Bail Clause. The Clause simply reads: “Excessive bail shall not be required … . ” and it has been rarely used in litigation. One might have expected otherwise, given the injustice and inefficiency of current U.S. bail practices. But the Bail Clause has so far played almost no role in the recent bail reform movement, with advocates instead focusing on due process and equal protection under the Fourteenth Amendment. This chapter provides an account of the history of the Bail Clause and the court interpretations that have rendered it peripheral to current reform efforts before briefly exploring proposals for revitalizing what should be an important constitutional safeguard of pretrial liberty.
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