What is the definition of excessive bail?

While the 8th Amendment does protect citizens from excessive bail, it does not classify what excessive bail actually is. On top of this, the court is legally allowed to weigh a variety of factors when determining bail amount. As a result, it is very easy for the court to justify a bail amount that seems excessive.

Let’s break down the definition of excessive bail and lay out how bail is determined by a judge.

The definition of excessive bail

Bail is considered excessive if it is an amount that is higher than it should be. This typically means that the bail outweighs the crime or is higher than it normally is for the crime in question. 

However, there is no legal wording that actually establishes a bail amount or limit by crime. Instead, it simply states that “bail must be set by a court at a sum designed to ensure that goal, and no more.” This is definitely up to interpretation. And if the bail amount does seem excessive, it can be difficult to fight back against. 

How is the bail amount determined?

The total bail amount is set by the court and a variety of factors are used to determine this amount. These factors typically include:

  • The type and severity of the crime committed
  • The criminal history of the defendant
  • How likely it is that the defendant would flee

In some cases, bail can even be denied. This can happen if the crime in question is highly severe — such as murder, aggravated assault, or stalking.

How can you post bail?

There are a few ways you can post bail. The most common ways, however, is to pay the bail yourself, have a loved one post bail on your behalf, or to work with a bail bond agent.

Depending on the amount of bail required, your current financial wellbeing, and the potential duration of the court proceedings, which method is right for you will vary.

Take a look at our additional resources to learn more about how to post bail: