Pretrial release requires that the regulations spelt out by the eight amendments be strictly adhered to. To ensue that the release is not haphazardly done, it is required that the interest of the authority/ government in the case be determined . the amendment requires that before the pretrial release is permitted the defendant must make a commitment to attend the proceedings as per the court’s calendar. As such, the eighth amendment was drafted to safeguard the interest of parties to a case, that is, the plaintiff and the defendant. The government’s interest is to ensure that justice is administered and the case is concluded. On the other hand, through the bail / pretrial release, the amendment sought to enforce human right in that the defendant is given sufficient time to prepare for the trial.
Based on the amendments, it is required that the safety of the society be taken into account before a pretrial bail is granted. As such, one who is not considered as a security threat to the society would have a bail before trial. On the contrary, one who is reasonably and convincingly believed to be a threat to the society or other person (s), cannot be granted pretrial release but be in detention as he or she awaits trial. The need for such conditions is to carry out ‘preventive detention’ so that the suspects may not go out and do more harm or evil to others and the community and large.
There are however conditions that must be met before a pretrial release. The perceived dangerousness of the suspect to the society must be ascertained. There must be a convincing/ concrete evidence to support the claim so that subjectivity does not prevail. The normal conditions that normally lead to pretrial release are determined by the nature of the charges that one faces. For example, violation of a city by laws or municipal ordinance may not be considered a serous offence like murder so that such persons are entitled to pretrial release.
The eighth amendment also tackles the issues relating to bails. However, the bail value is stipulated to be reasonable and not excessive. According to Lemke (2009), the eight amendment to the constitution outlawed excessive bail As such one the factors that determines the size of the bail set by the court is reasonableness. Based on the premise that the amount should not be exceeded, it is required that it be reasonable. Additionally, the suspects’ condition also acts as a guiding factor in determining the bail amount. As such, the amount needs to be particularized to the suspect in question to avoid the excessive charges.
At the same time the government’s interest must be applied as guidance in calculating the bail amount. As such, the figures arrived at must not be excessive but enough to assert the government’s interest. As such, the interest of the government here is guarantee of the suspect’s court appearance without coercion. Also, it is in the interest of the government that if the suspect if awarded a jail term, he or she must submit to it. Emphatically, the pretrial release in ‘conditioned upon the [defendants] giving adequate assurances [to the court] that he will stand trial and submit to sentencing if found guilty’, as deduced on the Stack v. Boyle (Lemke, 2009).
These factors, based on the probability of default or cooperation by the suspect act as guiding factors in determination of the bail amount and no more than the value of the government’s interest should be charged. Summarily, if the crime is serious and there is high likelihood of the offender not return to court, the bail will be higher.
In conclusion, the eighth amendment spells out the kinds of charges that can be bailed and the ones that cannot be granted bail. It is therefore the prerogative of the court to determine the sufficiency and seriousness of the case therein. If the offence is viewed as sufficiently serous, it is required that the court do not give a bail. However, the court must not set prohibitive fees that may bar the defendant from raising the bail in order to earn the pretrial release (U. S. Courts, 2010).
Lemke, A. (2009). Evaluation of the Pretrial Release Pilot Program in the Mesa
Municipal Court. Retrieved August 16, 2010, from http://www.ncsconline.org/D_ICM/programs/cedp/papers/Research_Papers_2009/Lemke_EvalPretrialReleaseProg.pdf.
U. S. Courts. (2010). The administrative office of the United States courts. Retrieved
August 16, 2010, from http://www.uscourts.gov/adminoff.html