A Right to Bail: Recovering Constitutional Protections in the Excessive Bail Clause

The 8th Amendment forbids excessive bail, but this essential Constitutional protection has been undermined. The Supreme Court held in U.S. v. Salerno that the Constitution does not entitle defendants to bail and allowed federal courts to deny bail if they deem the defendant a threat to the community. However, both history and the current problems in the bail system demonstrate the Court erred in its ruling. Contrary to Salerno, the 8th Amendment was intended to provide a right to bail for all defendants who posed no threat to the judicial process. In order to protect essential rights of due process and presumption of innocence, Salerno ought to be overturned, a right to bail ought to be found within the Excessive Bail Clause, and this right should be incorporated to the states.