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8th Amendment on “No-Cash Bail” – for the poor?

8th Amendment to the Constitution

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Is there a rationale for releasing the poor from any obligation to make bail based on the 8th Amendment? Does the Bible speak to this question?

No-Cash Bail For The Poor

“Excessive” could be based on the ability of the incarcerated individual to pay or make bail. Currently, bail is at least partially prorated based on the ability to pay. However, for the poor, ANY amount of bail or bond could be considered excessive based on the 8th Amendment. This contributes to a “cycle of poverty”. Further, for those who can’t afford bail, being forced to remain incarcerated could be construed as “cruel and unusual punishment”. The poor are disproportionately represented in jail, as compared to those of a higher socioeconomic status. Further, research has shown that those who are left in jail have longer sentences and less bargaining ability in court.


Currently, there are more than 700k people in our prisons, costing taxpayers $22 billion a year. Over the last year, bail reform has been attempted in New York, New Jersey, California, Alaska, and Illinois. In April of 2020, CA set new bail criteria, leading to a mass exodus from jails and prisons. However, by June, there was a massive uproar. Examples like one man being arrested and released three times in a single day permeated the news. The Judicial Council of California voted overwhelmingly to reverse their decision made just three months earlier.

Illinois is currently the only state considering the abolishment of bail with State Senator Robert Peters saying that the “cash bail system imposes a different justice system on defendants who can afford their bond compared to those who can’t… All it does is reinforce the idea that if you’re poor, you’re supposedly more dangerous.”

And while the pretrial poor are in jail, they are influenced by those convicted offenders who are serving out their time.

What About COVID

Some of the momentum for no-bail reform has come from COVID concerns. The incarcerated are at higher risk due to close living conditions. The premise of ‘innocent until proven guilty’ means that those in jail, awaiting trial, are not to be considered criminals. Therefore, if the poor do not have the funds for bail, shouldn’t they be released due to factors such as COVID and the efficacy of masks in close quarters? It is argued that this approach provides socioeconomic equality, both financially (“excessive bail”) and health-wise (“cruel… punishment”).

Legal Sources of Opinion

Cornell Law School set a clear definition on the subject of the condition of the pretrial defendant stating, “One of the most sacred principles in the American criminal justice system, [is] that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each essential element of the crime charged.” They further refined their assessment by saying, “Bail is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.” If one has not yet been proven guilty beyond a reasonable doubt, then logically any bail or bond set at a level that prevents the defendant from escaping incarceration would be contrary to the 8th Amendment.

In a lengthy position paper on the subject, The American University Criminal Law Brief presented an extensive review. Quoting from the end of the article, “The Excessive Bail clause of the Eighth Amendment should be read not only to forbid the setting of bail in excessive amounts, but also to prohibit the unreasonable denial of bail. Such an interpretation is consistent with both the history of that clause, the purpose behind the enactment of the Bill of Rights generally, and the Eighth Amendment, specifically limitation of government power. Furthermore, this interpretation of the Eighth Amendment is drawn from Supreme Court precedent and is also in line with the contemporary standards of the United States, as reflected in the laws and practices of the states.” 


In summary, from the Cornell article, if one is “considered innocent until proven guilty” they should be offered a pathway to pretrial freedom for minor crimes. Further, from the AU Criminal Law Brief “unreasonable denial of bail” is being performed when set at a level where the poor can not afford to be pretrial bonded.

What does the Bible say…

  • 1 John 3:17 A brother in need…
  • Proverbs 14:31 Oppressing the poor…
  • Proverbs 29:7 The righteous vs. the wicked…
  • Deut. 19:15-16 Innocent until proven guilty…
  • James 2:4 We should not be judges…    
  • 1 Cor. 13 and James 2:1-10 really press home the point…

It’s Crazy To Just Let Everyone Go

The end result of not requiring some form of bail or bond is that so many more criminals (innocent until proven guilty as they may legally be considered) get released back onto the streets and potentially commit more crimes while awaiting trial. Further, releasing those arrested prior to their trials ties up law enforcement when individuals skip their bail. If a bond is in place, the Bail Bondsman typically takes on the burden of tracking down offenders.

Hence the conflict for the Biblical Christian who struggles between fairness and a sense of injustice vs. the fear of increased criminal conduct.

Proverbs 31:9 Defend the rights of the poor…


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