[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1795 Introduced in Senate (IS)]

  1st Session
                                S. 1795

    To amend title 18, United States Code, and the Federal Rules of 
       Criminal Procedure with respect to bail bond forfeitures.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 29, 2003

 Mr. Graham of South Carolina introduced the following bill; which was 
       read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend title 18, United States Code, and the Federal Rules of 
       Criminal Procedure with respect to bail bond forfeitures.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Bail Bond Fairness Act of 2003''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress makes the following findings:
            (1) Historically, the sole purpose of bail in the United 
        States was to ensure the defendant's physical presence before a 
        court. The bail bond would be declared forfeited only when the 
        defendant actually failed to appear as ordered. Violations of 
        other, collateral conditions of release might cause release to 
        be revoked, but would not cause the bond to be forfeited. This 
        historical basis of bail bonds best served the interests of the 
        Federal criminal justice system.
            (2) Currently, however, Federal judges have merged the 
        purposes of bail and other conditions of release. These judges 
        now order bonds forfeited in cases in which the defendant 
        actually appears as ordered but he fails to comply with some 
        collateral condition of release. The judges rely on Federal 
        Rule of Criminal Procedure 46(e) as authority to do so.
            (3) Federal Rule of Criminal Procedure 46(e) has withstood 
        repeated court challenges. In cases such as United States v. 
        Vaccaro, 51 F.3d 189 (9th Cir. 1995), the rule has been held to 
        authorize Federal courts specifically to order bonds forfeited 
        for violation of collateral conditions of release and not 
        simply for failure to appear. Moreover, the Federal courts have 
        continued to uphold and expand the rule because they find no 
        evidence of congressional intent to the contrary, specifically 
        finding that the provisions of the Bail Bond Act of 1984 were 
        not intended to supersede the rule.
            (4) As a result, the underwriting of bonds for Federal 
        defendants has become virtually impossible. Where once the bail 
        agent was simply ensuring the defendant's physical presence, 
        the bail agent now must guarantee the defendant's general good 
        behavior. Insofar as the risk for the bail agent has greatly 
        increased, the industry has been forced to adhere to strict 
        underwriting guidelines, in most cases requiring full 
        collateral. Consequently, the Federal criminal justice system 
        has been deprived of any meaningful bail bond option.
            (5) In the absence of a meaningful bail bond option, 
        thousands of defendants in the Federal system fail to show up 
        for court appearances every year. When this happens, the 
        expense and effort by Federal law enforcement officers to 
        investigate and apprehend defendants is wasted and the overall 
        interests of justice are thwarted.
    (b) Purposes.--The purposes of this Act are--
            (1) to restore bail bonds to their historical origin as a 
        means solely to ensure the defendant's physical presence before 
        a court; and
            (2) to grant judges the authority to declare bail bonds 
        forfeited only where the defendant actually fails to appear 
        physically before a court as ordered and not where the 
        defendant violates some other collateral condition of release.

SEC. 3. FAIRNESS IN BAIL BOND FORFEITURE.

    (a) In General.--
            (1) Failure to appear.--Section 3146(d) of title 18, United 
        States Code, is amended by inserting at the end the following: 
        ``The judicial officer may not declare forfeited a bail bond 
        for violation of a release condition set forth in clause (i) 
        through (xi), (xiii), or (xiv) of section 3142(c)(1)(B).''.
            (2) Violation of a release condition.--Section 3148(a) of 
        title 18, United States Code, is amended by inserting at the 
        end the following: ``Forfeiture of a bail bond executed under 
        clause (xii) of section 3142(c)(1)(B) is not an available 
        sanction under this section and such forfeiture may be declared 
        only pursuant to section 3146.''.
    (b) Criminal Procedure.--Rule 46(e)(1) of the Federal Rules of 
Criminal Procedure is amended by striking ``there is a breach of 
condition of a bond'' and inserting ``the defendant fails to appear 
physically before the court''.
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