Duquesne Law Review


The administration of bail involves two separate questions: (1) is the defendant eligible for bail; and (2) if he is eligible, what conditions of release should be imposed.

The first question is readily answered by reference to federal and state constitutional and statutory provisions. Generally anyone charged with a non-capital offense is eligible for bail.

The second question is not as easily resolved. Federal and state statutes set out only general considerations. Typical is Rule 46c of the Federal Rules of Criminal Procedure which provides that the amount of bail should be such as

"will insure the presence of the defendant, having regard to the circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant."

Relevant to the determination of conditions of release is the Eighth Amendment's prohibition against "excessive bail." There is, however, almost no case law construing this provision-even its applicability to state proceedings through the Fourteenth Amendment is unsettled.

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