In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….
—Amendment VII
Toward the end of the Constitutional Convention, Hugh Williamson of North Carolina noted that “no provision was yet made for juries in civil cases and suggested the necessity of it.”
It was a costly oversight, for the omission of a guarantee of civil juries occasioned the greatest opposition to the Constitution in the ratifying conventions. Of the six ratifying conventions that proposed amendments to the Constitution, five included a right to a jury in civil cases.
The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly “suits at common law,” particularly when “public” or governmental rights are at issue.
In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither “implicit in the concept of ordered liberty,” Palko v. State of Connecticut (1937), nor “fundamental to the American scheme of justice,” Duncan v. Louisiana (1968). Accordingly, in company with only the Second Amendment and the Grand Jury Clause of the Fifth Amendment, the Seventh Amendment is not “incorporated” against the states; it applies only in the federal courts.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
—Amendment VIII
In both English and American practice, the level of bail is determined on a case-by-case basis to ensure the defendant’s presence at trial. The court often takes into account the character of the charged offense and the previous behavior of the defendant. The Supreme Court has declared that a bail amount would be “excessive” under the Eighth Amendment if it were “a figure higher than is reasonably calculated” to ensure the defendant’s appearance at trial. Stack v. Boyle (1951); see also United States v. Salerno (1987). Procedurally, the defendant must file a motion for reduction in order to contest a bail as excessive.
More recently, the Supreme Court has approved a state statute allowing pretrial detention of some juveniles, Schall v. Martin (1984). In United States v. Salerno (1987), the Court upheld the pretrial detention provisions in the Bail Reform Act of 1984 that applied to persons who were arrested for serious crimes and who might pose a danger to the community. Based on the Bail Reform Act, a federal district court has upheld detention without bail of persons with alleged terrorist connections. United States v. Goba (2003).
If some of this sounds familiar, you might want to refer back to our blog posting on Amendment VI.
Where does someone accused of a criminal act wait those years before they are brought to trial? They wait in jail.
We don’t think twice about this because we’ve been doing it so long. But why on Earth should someone be imprisoned before they are found guilty of a crime? Jail is for convicted criminals, not people awaiting trial.
It’s a holdover from our past, the early 1800s, when the wait for a trial was a few days at most and the authorities wanted to make sure the accused showed up for trial and didn’t skip town. It seemed reasonable to have them wait in jail those few days. As the wait got longer, we came up with a horrible solution: posting bail.
This seems like a very small thing. If you’re arrested, you can post bail to stay out of jail until your trial. That seems fair.
But it’s not fair, because it gives those who have money an advantage over those who don’t. If you’re rich you can post bail; if you’re poor, you can’t. So poor people go to jail, while others don’t.
Why should anyone have to pay to stay out of jail when they haven’t been convicted of a crime? The only reason this terrible system remains in place is that bail money helps fund state governments.
Putting innocent people in jail for years is wrong; putting people whose innocence or guilt has not been established is wrong. Both violate the Constitution.
