One of the beneficent rules of criminal procedure in courts of common law is that a person accused of and arrested for a crime but not yet proven guilty in a judicial trial shall not, save in cases of the gravest character, be deprived of his liberty while awaiting trial, provided he can give reasonable assurance that he will appear when his case is brought on for trial and submit to the punishment imposed, should he be found guilty; and he is allowed to give this assurance by the execution of a bond with a money penalty signed by persons who are financially responsible and who undertake that he shall be present when required, and submit to the punishment imposed. The term "bail" is in common parlance used indiscriminately to indicate either the bond which is furnished or the persons who bind themselves under penalty to see that the accused appears when required. In prosecutions for the graver crimes the accused must be arrested and brought before the court or voluntarily appear and subject himself to arrest; the court cannot proceed if the prisoner by escaping either before or after arrest prevents the prosecution from having him actually in the presence of the court. Therefore, release on bail after arrest may properly be refused in cases of treason or murder or other crime which may be punished capitally, for it is not to be supposed that any pecuniary consideration or any consideration for bondsmen would be adequate to restrain the escape of one who feared a conviction that would result in the loss of his life. In some state constitutions there are specific provisions as to the cases in which bail may be allowed, but in the absence of such specific provisions it is to be allowed in the general discretion of the court, subject to such statutory regulations as may have been adopted. Release on bail is the rule and the refusal of bail is the exception; but the amount of bail, that is, the penalty to be fixed in the bail bond and exacted from the sureties in case the accused does not appear for trial or render himself for punishment in case he is found guilty, is to be fixed by the judge or court. The accused who has been released on bail is supposed to be in the custody of or under the supervision of his sureties, who are authorized to surrender him to the proper officers in case they wish to relieve themselves from further responsibility. The provision of Amendment VIII, that excessive bail shall not be required, is by implication a direction that bail shall not be refused in a proper case; but it is directory rather than mandatory, for there must be authority somewhere to determine whether the charge is one of such nature that bail should not be allowed, or if bail is allowed the amount of bail which should be required.

It is usually provided that even after conviction, save in cases where bail may properly be denied on account of the nature of the crime, the accused may be released on bail pending an appeal from his conviction to the proper appellate court.

Amendment VIII also prohibits the infliction of cruel and unusual punishments. The common law as administered in England in earlier times authorized barbarous punishments such as being drawn and quartered or maimed or branded or disfigured; and while the death penalty for very grave crimes, such as treason and murder, has been retained, the infliction of such penalty in any barbarous or unusual manner would be in violation of the guaranties of the federal and state constitutions. Hanging as a means of inflicting the death penalty has been continuously practised as a proper method, and perhaps decapitation would not be an improper method, although it is unusual. Execution by electricity has been held not to be such a cruel method of inflicting capital punishment as to be open to constitutional objection (In re Kemmler). Whipping as a punishment for certain offences is authorized by the laws of some of the states. It may be announced as a safe rule that whatever forms of punishment were usual at the time of the adoption of the state constitutions would still be authorized.