4.1 GENERAL CONSIDERATIONS
4.101 The Constitutional Standard. Both the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Virginia Constitution provide that "excessive bail" shall not be required. What exactly the framers of these provisions intended has never been definitively resolved, but there is no question that the Eighth Amendment and corresponding jurisprudence apply to the states because of the Fourteenth Amendment. 1
Several fundamental unresolved issues remain, however. First is the question of whether the language in either or both the United States and Virginia Constitutions requires that bail be set in all cases. In other words, do the constitutional provisions prohibiting "excessive bail" also prohibit, by implication, holding a person without bail? The second unresolved question is the meaning of the concept "excessive bail." By what standard do we measure what bail is excessive?
Finally, other constitutional concerns may be implicated when a person is detained before trial. Although cases indicating a judicial willingness to examine the actual conditions of pretrial detention assume the constitutional right to impose pretrial restraints, they also demonstrate willingness to review, under a general due process standard, whether the conditions of detention are reasonably related to security needs and whether the conditions of detention are reasonable. Additionally, the Supreme Court has held that the Fourth Amendment requires judicial consideration of the legality of the detention at the earliest practical moment whenever significant pretrial restraints on liberty are imposed. 2
Most authorities conclude that the prohibition against excessive bail means that "bail shall not be excessive in those cases in which it is proper
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and that setting no bail in some cases is not excessive." 3 The right of the states to deny bail, especially in capital cases, has been uniformly sustained. 4 In non-capital cases there is no brightline rule requiring or prohibiting a court from setting a bond. 5
In those cases where bail has been set and a claim has been made that the terms constitute "excessive bail," there is no definitive standard. In one case, the Supreme Court held that a trial court cannot arbitrarily set a bond that is greater than the usual bond for such charges without evidence to support a higher-than-average bond. 6 The Court has also held, however, that flight of the accused is not the sole consideration permissible under the Constitution and that the government may base bail considerations on other factors, such as danger to the community. 7
Regarding the terms and conditions of confinement for persons detained before trial, the Supreme Court has suggested that it is possible to conclude that the terms and conditions constitute impermissible "punish-ment." 8 Prison rules and regulations of an arbitrary and purposeless nature would be evidence of a punitive intent. 9 However, restrictions based on keeping order, security, and discipline in the detention facility will be accorded deference. 10 Lower federal courts, however, have seemingly gone beyond the Supreme Court decision in examining the terms of confinement for pretrial detainees and have invalidated practices such as prohibitions on visitations and telephone calls. 11 Lower federal courts also have scrutinized the sanitary conditions under which pretrial detainees have been held. 12
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In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate nonpunitive governmental objective, it does not, without more, amount to "punishment," but, conversely, if a condition or restriction is arbitrary or purposeless, a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. In addition to ensuring the detainees'...
