Bail has long been a feature of the American justice system, meant to keep people out of jail before trial while ensuring they return to court. Rooted in medieval England, it began as a way to avoid unnecessary pretrial imprisonment. In the United States, the system expanded into a cornerstone of legal traditions—and a continuing source of debate over fairness and equality.
“In medieval England, bail developed as a way to reconcile two principles: ensuring the accused appeared in court while avoiding unnecessary pretrial imprisonment,” says Shima Baradaran Baughman, a law professor at Brigham Young University and author of The Bail Book: A Comprehensive Look at Bail in America's Criminal Justice System.
The influential English Bill of Rights of 1689 prohibited "excessive bail," a principle deliberately incorporated into American legal thought.
“When the colonies established their own systems, they carried forward the idea that liberty before trial should be the default, with financial guarantees used as a safeguard rather than as punishment,” Baughman says. “This continuity explains why bail became embedded so firmly in our early legal framework even though England later abandoned their earlier models.”
Early American Bail Practices Based on England Model
According to Bail in the United States: 1964, a report from the U.S. Department of Justice, most individuals released on bail in 17th-century England were unlikely to flee. Severe penalties, strong community ties and trusted local sureties (individuals who pledged money or property to ensure the defendant's court appearance) helped ensure compliance.
By the Founding Era (1790-1810), American bail procedures were based largely on English practices and followed a predictable process. According to Bail at the Founding, published in the Harvard Law Review, criminal cases began with an arrest or a civilian complaint. The accused was brought before a justice of the peace or judicial officer, often located in informal settings like homes or local businesses. Justices examined the accusations and evidence to decide whether the accused should be released on bail, detained or jailed.
Bail decisions depended on the severity of the offense, with some crimes deemed nonbailable, according to the report. If bail was granted, defendants had to provide sureties. Both defendants and sureties signed recognizance bonds outlining their obligations.
If a defendant failed to appear, recovering the forfeited pledge often involved lengthy proceedings, sometimes taking up to a year, Bail at the Founding adds. While the procedural framework was similar across states, the rules for who could be granted bail varied, reflecting a gradual departure from strict English traditions.
1791: The Eighth Amendment and ‘Excessive Bail’
The U.S. Constitution's Eighth Amendment, ratified in 1791, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
“The prohibition of ‘excessive bail’ was both symbolic and practical,” Baughman says. “Symbolically, it reflected the founders’ deep suspicion of government overreach, as many of them were familiar with arbitrary detention in the Old World. Practically, it codified the idea that bail should never be used as a tool of oppression.”
Bail, according to Baughman, was intended to ensure court appearances, not to serve as pretrial punishment or a way to detain unpopular defendants.
“The inclusion of that phrase in 1791 underscored a constitutional commitment to liberty prior to conviction, while still recognizing the state’s interest in ensuring accountability for alleged crimes committed,” she says.
The Judiciary Act of 1789 continued to establish the principle of bail in the federal court system, mandating that bail be granted in all cases except those punishable by death. According to Bail in the United States: 1964, the act left decisions in capital cases to judicial discretion. “This right to bail was later echoed in state constitutions and statutes across much of the country,” it states.
Late 19th Century: The Rise of Commercial Bail Bondsmen
By the late 19th century, the bail system shifted with the rise of commercial bail bondsmen. The first known bail bond company was founded in San Francisco in 1898 by the McDonough brothers.
“This shift transformed bail from a constitutional safeguard into, in many cases, a commercial transaction,” Baughman says. “The rise of bondsmen was driven by urbanization, increasing caseloads and courts’ growing reliance on money bail as the default mechanism of release." She says bondsmen essentially created a two-tiered system, where those with access to finances could buy their pretrial freedom while those without means remained jailed.
"It also shifted enormous power into the hands of private actors who were not accountable to the courts in the same way that public institutions were," she says.
1960s Onward: Bail Reform Movements
Over time, bail reform movements emerged to address inequities and concerns about excessive judicial discretion. The modern bail reform movement began in the 1960s, according to Baughman, driven by a growing awareness that cash bail disproportionately punished the poor while failing to protect public safety.
“The Manhattan Bail Project, launched in 1961, demonstrated that many defendants could be safely released on their own recognizance if they had community ties—no money required,” she says.
That project, combined with the civil rights movement and President Lyndon B. Johnson’s call for “equal justice,” drove the passage of the federal Bail Reform Act of 1966, which sought to curb judicial overreach.
“Later reforms in the 1980s added preventive detention for truly dangerous individuals,” Baughman says. “The broader reform movement has always been about equity: shifting from a wealth-based system to one that evaluates actual risk, ensuring that liberty before trial depends on factors like danger and flight risk, not the size of someone’s wallet.”
The latest wave of bail reform began around 2010, when several states passed bipartisan laws to improve pretrial detention practices.
