FREEDOM BEFORE TRIAL
Since early colonial days, America has had a tradition of holding accused persons in jail for extended pretrial periods. John Peter Zenger, sometimes known in America as the father of freedom of the press, spent ten months in jail while awaiting trial for criminal libel against the English governor.1 Consistent with the English law operating in the colonies, Zenger was accorded his right to have bail set. The magistrate, who was responsible to the governor, set bail at 400 pounds, notwithstanding Zenger's adequate evidentiary presentation that this exceeded his net worth ten times, and that it was impossible for him to acquire the sum.2 Today, the practice of denying the accused freedom by the intentional or unintentional setting of bail in an amount the defendant cannot afford persists, although it is subjected to increasing attack. These frontal assaults on the bail system have necessitated a focusing upon the protections which the Constitution and statutes give to the accused prior to trial.
The Eighth Amendment of the Bill of Rights is unclear regarding the actual protection it affords the accused. Adopted in 1791, it states: "Exces-____________________