    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                         BAIL BOND FAIRNESS ACT OF 2007

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 2286

                                   __________

                                  JUNE 7, 2007

                                   __________

                               Serial No. 110-105

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
    WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
    ROBERT WEXLER, Florida               DARRELL ISSA, California
    LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
    STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
    HANK JOHNSON, Georgia                STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr.,
    HANK JOHNSON, Georgia                Wisconsin
    ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MARTIN T. MEEHAN, Massachusetts      DANIEL E. LUNGREN, California
    ARTUR DAVIS, Alabama
    TAMMY BALDWIN, Wisconsin

                          Bobby Vassar, Chief Counsel

                        Michael Volkov, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  JUNE 7, 2007

                                                                       Page

                                    THE BILL

    H.R. 2286, the ``Bail Bond Fairness Act of 2007''................     2

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     6
    The Honorable J. Randy Forbes, a Representative in Congress from
      the State of Virginia, and Ranking Member, Subcommittee on
      Crime, Terrorism, and Homeland Security........................     7

                                   WITNESSES

    The Honorable Robert Wexler, a Representative in Congress from
      the State of Florida
      Oral Testimony.................................................    15
      Prepared Statement.............................................    16
    The Honorable Ric Keller, a Representative in Congress from the
      State of Florida
      Oral Testimony.................................................    17
    Ms. Linda Braswell, MCBA, Braswell Surety Services, Inc., Stuart,
      FL
      Oral Testimony.................................................    19
      Prepared Statement.............................................    21
    The Honorable Tommy E. Miller, United States District Court,
      Eastern Virginia
      Oral Testimony.................................................    25
      Prepared Statement.............................................    27

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Letter from Richard A. Hertling, Principal Deputy Assistant
      Attorney General, Office of Legislative Affairs, U.S.
      Department of Justice..........................................     8
    Prepared Statement of the Honorable Ted Poe, a Representative in
      Congress from the State of Texas...............................    10
    Prepared Statement of Edward G. Gallagher, The Surety & Fidelity
      Association of America.........................................    57
    Prepared Statement of Armando Roche, MCBA, Past President,
      Professional Bail Agents of the United States..................    60

                         BAIL BOND FAIRNESS ACT OF 2007

                                  ----------

                             THURSDAY, JUNE 7, 2007

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 10:03 a.m., in
    Room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Delahunt, Forbes,
    Sensenbrenner, Coble, and Lungren.
        Staff Present: Bobby Vassar, Chief Counsel; Ameer Gopalani,
    Majority Counsel; Veronica Eligan, Professional Staff Member;
    Caroline Lynch, Minority Counsel; and Allison Beach, Minority
    Counsel.
        Mr. Scott. The Subcommittee will now come to order.
        And I am pleased to welcome you to the hearing before the
    Subcommittee on Crime, Terrorism, and Homeland Security on H.R.
    2286, the ``Bail Bond Fairness Act of 2007.''
        [The bill, H.R. 2286, follows:]

        Mr. Scott. I recognize myself for 5 minutes for the purpose
    of making an introductory statement.
        Representatives Wexler and Keller introduced H.R. 2286 on
    May 10 of this year, and the legislation is largely based on
    other bipartisan bills introduced in the previous three
    Congresses.
        Historically, bail has been issued for the sole purpose of
    ensuring a defendant's appearance in court as ordered. In
    recent years, however, Federal judges have ordered bail bonds
    forfeited when defendants violated even collateral conditions
    of pretrial release. Judges and opponents of 2286 cite several
    reasons supporting the practice for ordering bond forfeiture
    when the defendant violates any condition of pretrial release.
        First, they maintain that the potential for bond forfeiture
    is an added incentive for defendants on pretrial release to
    comply with bail bond conditions, particularly when the
    forfeiture would mean loss of assets for family or friends.
    Without this added incentive, proponents maintain that judges
    would be less apt to grant pretrial release and, consequently,
    more defendants would actually remain in pretrial detention.
        Second, opponents find that the actual forfeiture of bond
    for violating collateral pretrial release is rare.
        Third, some Federal judges allow defendants to deposit
    their own funds as bonds in amounts that would be equal to the
    premium that a commercial bail bond underwriter would charge,
    making commercial bail bond underwriters unnecessary, which is
    the actual reason for the decline in commercial bond
    underwriting in the Federal system.
        Finally, opponents find that the direct change to the
    Federal rules circumvents the process that Congress established
    by empowering the judiciary to be governed by the Federal rules
    of criminal procedure.
        In contrast, supporters of the bill maintain that this
    practice has created a barrier to pretrial release because the
    risk of bond forfeiture has forced commercial bond underwriters
    to avoid the Federal system. They find that the commercial bond
    underwriters opt to offer their services to defendants in the
    State systems where the risk of loss is lower.
        Opponents find that friends and family of defendants are
    similarly reticent to post bond for defendants because they
    cannot risk their homes or their life savings not only on the
    appearance, but also on the good behavior of their loved one.
        Supporters of H.R. 2286 also state that bond forfeiture
    based on violations of collateral conditions is unreasonable.
    They assert that while the commercial underwriter or family or
    friend may be able to compel a defendant to appear, they have
    no control over the defendant's personal activity.
        In essence, they maintain that the practice is unnecessary
    because the judges have a remedy to ensure compliance with bail
    conditions, namely ordering a pretrial defendant to detention
    if the defendant violates those conditions. Thus, ordering the
    bond forfeiture is simply a burden on the bond underwriter, not
    on the defendant.
        Finally, supporters maintain that pretrial release is a
    vital part of one's ability to assist in his or her defense, as
    they contend that bond forfeiture is an unreasonable and
    unnecessary barrier to pretrial release. They find that the
    practice is fundamentally unfair.
        H.R. 2286 would return the use of bail bonds to their
    historic purpose by limiting the judges' authority to order a
    bond forfeiture due to a defendant's failure to appear
    physically in order. The bill does, however, preserve a judge's
    authority to revoke pretrial release and order pretrial
    custody, should the defendant violate any of the conditions of
    pretrial release.
        Now that being said, it is my pleasure to recognize the
    Ranking Member of the Subcommittee, my colleague from Virginia,
    the Honorable Randy Forbes, who represents Virginia's Fourth
    Congressional District.
        Mr. Forbes. Thank you, Chairman Scott, and I appreciate you
    holding this legislative hearing on H.R. 2286, the Bail Bond
    Fairness Act of 2007.
        H.R. 2286 limits the circumstances for which bail can be
    forfeited. Bail set by a judge in Federal court typically
    includes provisions that require a defendant to make all court
    appearances and comply with other conditions, including
    requirements that the defendant refrain from traveling out of
    the jurisdiction, stay away from a victim, witnesses or a
    victim's neighborhood or that the defendant not violate any
    other laws.
        There are two fundamental issues that we need to examine.
    The first issue is the extent to which Federal judges have
    ordered the forfeiture of bail for violations of conditions of
    release, other than appearance in court.
        And if the answer to the first question is that Federal
    judges have forfeited a bond for violations of conditions of
    release, then the second issue is whether existing law provides
    a remedy for that or whether the law should be changed to
    prohibit Federal judges from ordering such forfeiture.
        The Crime Subcommittee has held hearings on this issue in
    2002 and 1998, and I am glad that we are taking another look at
    the issue to see if circumstances have changed and what
    possible steps Congress may need to take.
        I want to commend my Judiciary Committee colleagues,
    Congressman Wexler and Congressman Keller, for their leadership
    on this issue, and I look forward to hearing from them and the
    other witnesses today.
        And, Mr. Chairman, before I yield back my time, I would
    request unanimous consent to insert in the record a letter
    dated June 6, 2007, from the Deputy Assistant Attorney General,
    Department of Justice, on this matter, and also testimony
    offered by Congressman Ted Poe dated June 7, 2007.
        Mr. Scott. Without objection, the statements will be
    received for the record.
        [The information referred to follows:]
     Letter from Richard A. Hertling, Principal Deputy Assistant Attorney
       General, Office of Legislative Affairs, U.S. Department of Justice

       Prepared Statement of the Honorable Ted Poe, a Representative in
                        Congress from the State of Texas

        Mr. Forbes. And, Mr. Chairman, I yield back the balance of
    my time.
        Mr. Scott. The gentleman yields back.
        Are there other statements?
        We will now go to the witnesses. We have a distinguished
    panel of witnesses here today to help us consider the important
    issue before us.
        Our first witness will be the gentleman from Florida,
    Robert Wexler, who represents the 19th Congressional District
    of Florida. Serving his sixth term in Congress, he is a Member
    of the Foreign Affairs Committee where he Chairs the Europe
    Subcommittee. He is also a Member of the Financial Services
    Committee and the Judiciary Committee. As part of his work on
    judiciary-related issues, he co-founded the Caucus on
    Intellectual Property, Promotion and Piracy Prevention.
        Prior to coming to Congress, he served in the Florida
    Senate for 6 years. He holds a B.A. in political science from
    the University of Florida, a law degree from George Washington
    University.
        Our second witness is the gentleman from Florida, Ric
    Keller, who represents the Eighth Congressional District of
    Florida. Serving his fourth term, he is a Member of the
    Education and Labor Committee where he serves as the Ranking
    Member on the Subcommittee on Higher Education. He is also a
    Member of the Judiciary Committee where he is a strong advocate
    of the COPS program, the Community Oriented Policing Services
    program, to put more law enforcement officers on our streets.
        He was raised in Orlando, Florida, a graduate of East
    Tennessee State University where he graduated first in his
    class. He received his law degree from Vanderbilt University.
        Our third witness is Ms. Linda Braswell. She is currently
    the president of the Professional Bail Agents of the United
    States.
        She is a master certified bail agent and has been licensed
    as a bail bond agent for more than 30 years. In fact, when she
    obtained her license back in 1974, she enjoyed the distinction
    of serving as the youngest ever licensed female bail agent in
    the state of Florida at that time.
        She has been a board member of the Professional Bail Agents
    of the United States since 1990 and is a past President of the
    Florida Surety Agents Association. In 1995, she was inducted to
    the Professional Bail Agents of the United States Hall of Fame.
    She received a distinguished honor as the 2003 Bail Agent of
    the Year.
        She has also served on the Florida Department of Insurance
    Bail Bond Blue Ribbon Panel and is a certified Florida
    prelicensing instructor, certified Florida continuing education
    instructor and a certified bail agents program instructor.
        Our final witness is the Honorable Tommy Miller, magistrate
    judge for the United States District Court in the Eastern
    District of Virginia. He has served in that capacity since
    1987, having previously served as an assistant U.S. attorney
    and assistant commonwealth attorney for the City of Norfolk. He
    is the past president of the Federal Magistrates Association
    and has served as a member of the Judicial Conference Advisory
    Committee on Criminal Rules.
        He attended the University of Virginia and obtained his law
    degree from William and Mary Law School.
        Each witness's written statement will be made part of the
    record in its entirety.
        I would ask that each witness summarize his or her
    testimony in 5 minutes or less. And to help you stay within
    that time, there is a timing device on your table. When you
    have 1 minute left, the light will switch from green to yellow
    and, finally, to red when your 5 minutes are up.
        With that, we will begin the testimony with the gentleman
    from Florida.

     TESTIMONY OF THE HONORABLE ROBERT WEXLER, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF FLORIDA

        Mr. Wexler. First, thank you, Chairman Scott, thank you,
    Ranking Member Forbes, Members of the Subcommittee, for giving
    me the privilege of testifying in support of H.R. 2286.
        Since its first introduction in the 105th Congress, this
    bill has enjoyed bipartisan support. And I am quite pleased to
    join my Florida colleague, Congressman Keller, who has been a
    leader on this issue for several years.
        Essentially, this bill seeks to restore realistic
    expectations for the Federal bail bond system, which was
    disturbed following a judicial interpretation in the 1980's.
    Since then, Federal judges have been ordering bail bonds to be
    forfeited even when the defendant appears in court if the
    defendant fails to behave in certain ways.
        Bail agents who underwrite Federal bonds now must not only
    ensure appearance, but also other conditions, such as ensuring
    that the defendant will not consume alcohol, over which the
    bail agent obviously has little or no control. While bail
    agents do accept responsibility for a defendant, they cannot
    and should not be expected to be full-time nannies for each
    defendant.
        The Bail Bond Fairness Act preserves the authority of the
    judge to grant or refuse bail. The judge will continue to make
    a determination of the defendant's flight risk and threat to
    the community. Judges will still have the discretion to
    determine who is eligible for pretrial release, what conditions
    accompany that release, and whether or not a suspected criminal
    is a considerable flight risk. We all agree that if a suspected
    criminal is a serious threat to society, he or she must stay in
    jail.
        That said, the bail bond system on which the judicial
    system relies will fail if it is not reformed. For example,
    nonviolent individuals who are no real threat to our society
    will not be able to get bonds at all. Without reform, we run
    the risk of losing the services bail bond agents provide and
    forgetting the original purpose of the bail bond, which is to
    ensure the appearance of a defendant for a later court date.
        The bottom line is bail bonds should primarily be involved
    in guaranteeing appearance in court. Any other valid conditions
    set by the judge, such as alcohol or drug consumption, should
    not be tied to the bond, or the system will collapse. It makes
    much more sense to revoke the bail bond but not forfeit the
    bond if the defendant violates a condition set by the judge.
        Federal Rule of Criminal Procedure 46(e)(1) has withstood
    repeated court challenges. In cases such as United States v.
    Vaccaro, the rule has been held to authorize Federal courts
    specifically to order bonds forfeited for violations of
    collateral conditions of release and not simply for failure to
    appear.
        Moreover, the Federal courts have committed to uphold and
    expand the rule because they find no evidence of congressional
    intent to the contrary, specifically finding the provisions of
    the Bail Reform Act of 1984 were not intended to supersede the
    rule.
        It is important to note that even without the authority of
    the Federal Rule of Criminal Procedure 46(e)(1), judges have
    authority to declare a bail bond forfeited for a failure to
    appear as required by the conditions of release.
        It appears that Federal judges have merged the purposes of
    bail and others conditions of release. I understand that judges
    have come to order bonds forfeited in cases in which the
    defendant actually appears as ordered, but fails to comply with
    some collateral conditions of release. As a result, the
    underwriting of bonds for Federal defendants has become
    virtually impossible.
        The Bail Bond Fairness Act of 2007 will amend sections
    3146(a) and 3148 of the BRA to provide, essentially, that a
    judge could not declare a bond forfeited based on a violation
    of any condition of release, other than actual failure to
    appear physically before the court. The bill would also provide
    that forfeiture of a bail bond is not an available sanction for
    violation of a release condition.
        Where once the bail agent was simply ensuring the
    defendant's physical presence, he or she now must guarantee the
    defendant's general good behavior. This is simply unrealistic.
        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 options and bail
    agents have been effectively locked out of the Federal system
    since the 1980's.
        I genuinely hope the Subcommittee will join Congressman
    Keller and I in supporting this much needed reform of the
    Federal bail bond system and allow professional bail agents to
    return to the Federal court system.
        I thank you very much for your consideration.
        [The prepared statement of Mr. Wexler follows:]
    Prepared Statement of the Honorable Robert Wexler, a Representative in
       Congress from the State of Florida, and Member, Committee on the
                                   Judiciary
        Good morning. Chairman Scott, Ranking Member Forbes, members of the
    subcommittee, thank you for allowing me to testify in support of my
    bill, H.R. 2286, ``The Bail Bonds Fairness Act.'' Since its first
    introduction in the 105th Congress, this bill has enjoyed bipartisan
    support; and I am pleased to join Congressman Keller, who has been a
    leader on this issue for years, to testify before the subcommittee this
    morning.
        Essentially, this bill seeks to restore realistic expectations for
    the federal bail bonds system, which was thrown off following a
    judicial interpretation from the 1980's. Since then, federal judges
    have been ordering bail bonds to be forfeited even when the defendant
    appears in court if the defendant fails to behave in a certain way.
    Bail agents who underwrite federal bonds now must ensure not only
    appearance, but also other conditions--such as ensuring that the
    defendant will not consume alcohol--over which the bail agent obviously
    has no control. While bail agents do accept responsibility for a
    dependent, they cannot, and should not be expected to be, full-time
    nannies for each defendant.
        The Bail Bond Fairness Act preserves the authority of the judge to
    grant or refuse bail. The judge will continue to make a determination
    of the defendant's flight risk and threat to the community. Judges will
    still have the discretion to determine who is eligible for pretrial
    release, what conditions accompany that release, and whether or not a
    suspected criminal is a considerable flight risk. We all agree that if
    a suspected criminal is a serious threat to society, he or she should
    stay in jail.
        That said, the bail bonds system--on which the judicial system
    relies--will fail if it is not reformed. For example, nonviolent
    individuals--who are no threat to our society--will not be able to get
    bonds. Without reform, we run the risk of losing the services bail
    agents provide and forgetting the original purpose of the bail bond--to
    ensure the appearance of a defendant for a later court date.
        The bottom line is bail bonds should be primarily involved in
    guaranteeing appearance in court. Any other valid conditions set by the
    judge such as alcohol or drug consumption should not be tied to the
    bond, or the system will collapse. It makes much more sense to revoke
    the bail bond but not forfeit the bond if the defendant violates a
    condition set by the judge.
        Federal Rule of Criminal Procedure 46(e)(1) has withstood repeated
    court challenges. In cases such as United States v. Vaccaro, the rule
    has been held to authorize federal courts specifically to order bonds
    forfeited for violations 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 the
    provisions of the ``Bail Reform Act of 1984'' (BRA) were not intended
    to supersede the rule.
        It is important to note that even without the authority of Federal
    Rule of Criminal Procedure 46(e)(1), judges have authority under the
    BRA to declare a bail bond forfeited for a failure to appear as
    required by ``the conditions of release.'' It appears that federal
    judges have merged the purposes of bail and others conditions of
    release. I understand that judges have come to order bonds forfeited in
    cases in which the defendant actually appears as ordered, but fails to
    comply with some collateral conditions of release. As a result the
    underwriting of bonds for federal defendants has become virtually
    impossible.
        By way of history, in 1997 Congressman Bill McCollum, who now
    serves as Florida's Attorney General, introduced legislation addressing
    this problem. The ``Bail Bond Fairness Act of 1997'' proposed amending
    Federal Rule of Criminal Procedure 46(e) to divest judges of their
    authority to order bonds forfeited based simply on the defendant's
    violation of a collateral condition of release. This alone would not
    solve the problem of judge's using their authority to forfeit bonds for
    non-compliance with collateral conditions. A 2001 revision of the
    original bill clarified that federal judges would also be authorized
    only to declare bail bonds forfeited where a defendant actually failed
    to appear physically before a court as ordered and not when a defendant
    had simply failed to comply with other collateral conditions of
    release. Subsequently, the ``Bail Bond Fairness Act of 2003'' added
    provisions amending the ``Bail Reform Act of 1984'' (BRA) to clarify
    the issue of Congressional intent.
        The ``Bail Bond Fairness Act of 2007'' will amend sections 3146(a)
    and 3148 of the BRA to provide, essentially, that a judge could not
    declare a bond forfeited based on a violation of any condition of
    release, other than actual failure to appear physically before the
    court. The bill would also provide that forfeiture of a bail bond is
    not an available sanction for violation of a release condition.
        Where once the bail agent was simply ensuring the defendant's
    physical presence, he or she now must guarantee the defendant's general
    ``good behavior.'' This is simply unrealistic. 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 options and bail agents have been
    effectively locked out of the federal system since the 1980's.
        I hope the subcommittee will join me and Congressman Keller in
    supporting this needed reform of the federal bail bonds system and
    allow professional bail agents to return to the federal court system. I
    thank you for your time and consideration of the Bail Bond Fairness Act
    of 2007.

        Mr. Scott. Mr. Keller?

      TESTIMONY OF THE HONORABLE RIC KELLER, A REPRESENTATIVE IN
                   CONGRESS FROM THE STATE OF FLORIDA

        Mr. Keller. Well, thank you, Mr. Chairman, for holding this
    hearing. I want to thank my colleagues, Congressman Forbes and
    Congressman Lungren, for appearing as well.
        Some may be tempted to think that with Wexler and Keller
    supporting this bill, one of us has not read it. The truth of
    the matter is we have both read this great little bill, and we
    are wholeheartedly in support of it, and I am so proud that
    Congressman Wexler is the author and lead sponsor of this bill.
        It was previously before this Judiciary Committee where it
    was passed unanimously by a voice vote, enjoying the support of
    then Chairman Sensenbrenner and now Chairman Conyers.
        Let me just give you a real life example of why I think
    this bill is important.
        Imagine a man is arrested and he is given a $100,000 bail.
    He is not a particular flight risk or a danger to others. So he
    goes and gets a bail bond to secure his release.
        The bail bondsman has an obligation to make sure that he is
    physically there in court at each appearance, and he fulfills
    that, and yet after making sure this man is there at every
    appearance, the judge just says, ``You know, I am going to have
    to forfeit your $100,000 bond because I heard that you traveled
    to your favorite restaurant just a mile outside of the county
    line,'' or ``I heard that you came home late, half an hour
    after the 10 p.m. curfew I gave you,'' or ``I heard that you
    got a speeding ticket for going six miles over the speeding
    limit.''
        Under those circumstances, the $100,000 bond can be
    forfeited, even though the bail bondsman did his job and made
    sure the defendant is there.
        Now that has some pretty terrible consequences, and the
    consequences are the bail bonds company will no longer give
    bail to people who do not have substantial assets to cover the
    $100,000 bond, and so the question that the bail bond agent
    will ask, if we do not pass this bill, is, ``Let me ask you a
    question, Mr. Defendant. Do you own a Mercedes? No? Do you own
    a BMW? No? Do you have $100,000 in your checking account? No?
    Do you have $100,000 in equity in your home? No? I am sorry.
    You are just going to have to stay in jail.''
        Now Martha Stewart can leave. She has plenty of assets, and
    we can give her a bond. But you cannot. And that
    disproportionately impacts in a negative way low-income folks
    and many minorities, and we think that is basically unfair.
        This bill preserves, however, the ability of judges to have
    serious consequences for those who do not follow their
    conditions, whether it be traffic tickets or jurisdictional
    boundaries or going to drug counseling. All the judge has to do
    is to revoke the bail bond and put the defendant in jail, which
    is a pretty powerful incentive. What he will not be able to do
    under this bill is to forfeit the bail bond.
        The gist of this bill is that bail bondsmen must guarantee
    the physical appearance of a defendant in court, and if they
    do, the bond will not be forfeited. That makes it fair for the
    defendant and fair for the surety companies, and it is fair for
    America because it puts two-and-a-half bail bondsmen out there
    as a sort of private security force to make sure that there is
    someone looking after them and that these folks appear in
    court.
        So for those solid reasons, you have broad bipartisan
    support and a great bill, and I would urge my colleagues to
    support it, and I would yield back the balance of my time.
        Mr. Scott. Thank you.
        Ms. Braswell?

                  TESTIMONY OF LINDA BRASWELL, MCBA,
               BRASWELL SURETY SERVICES, INC., STUART, FL

        Ms. Braswell. Thank you, Mr. Chairman and Members of the
    Committee.
        I am president of the Professional Bail Agents of the
    United States. PBUS is the national professional association
    representing the nation's 14,450 licensed bail agents.
        You do have a copy of my written statement, and I would
    like to summarize that for you this morning.
        The historic purpose of the constitutional right to
    reasonable bail in the United States is to guarantee the
    appearance of a defendant for his or her court appearances. A
    bail bond is forfeited by a court if the defendant fails to
    appear as ordered. In essence, a bail bond guarantees the
    appearance of an accused person in court until his or her case
    has reached final disposition.
        In 1995, the 9th Circuit Court handed down an opinion in
    the United States v. Vaccaro that changed the Federal court's
    interpretation of what a bail bond guarantees. The traditional
    guarantee of appearance was changed to include a guarantee of
    the personal good conduct of the defendant who was out on bail.
    Since the Vaccaro opinion, bail agents and corporate surety
    bond insurers have been limited in executing bail bonds in the
    Federal court system due to excess risk.
        H.R. 2286 seeks to remedy the result of the 9th Circuit's
    1995 opinion in the United States v. Vaccaro. The court ordered
    the $100,000 corporate surety bond forfeited because the
    defendant violated the personal conditions of his release
    imposed by the presiding judge. At no time did Mr. Vaccaro fail
    to appear at his scheduled court dates. He chose rather to
    travel outside the jurisdiction and commit a new offense.
        I as a bail agent can quantify the risk of non-appearance,
    but no one--no one--has the ability to predict a defendant's
    performance or compliance with regard to personal conditions
    set forth for his or her release, for example, non-abuse of
    alcohol, drugs or whether they will commit an additional
    offense.
        H.R. 2286 is narrowly based. It reads that bail in the
    Federal court will be forfeited for non-appearance only, which
    conforms to the historic basis for bail. A Federal court can
    always require all kinds of conditions for a defendant when
    they are out on bail. It might consist of home monitoring,
    random urinalysis or other types of conditions. Those are
    conditions of bail that are levied directly on the individual
    defendant. The defendant is responsible for his behavior, not
    the surety who is guaranteeing his appearance.
        The real issue comes down to whether a surety is, in fact,
    a family member, be it a set of parents or grandparents who
    have put up cash, real estate or other items to guarantee the
    appearance of a defendant. Do these individuals who guarantee
    bonds really understand that they are liable for the
    defendant's conduct, that they are required to make sure that
    their child or grandchild abides by the conditions of release
    when, in fact, most of them truly believe that they are only
    responsible for his or her appearance?
        The Bail Bond Fairness Act would restore appearance as the
    sole basis for the forfeiture of a bail bond posted in the
    Federal court system. It will not hinder, it will not impede,
    nor will it restrain a Federal court from levering other types
    of conditions, but if a defendant violates the personal
    conditions of release, the court at its discretion can impose
    additional conditions, can revoke the bail, can remand the
    defendant back into custody, which is the personal penalty that
    the defendant will pay. A surety, on the other hand, will
    guarantee that the defendant appears in court, the traditional
    role of the surety in the United States.
        I ask that you support H.R. 2286 because it will allow bail
    agents and individuals to once again take up their traditional
    role of guaranteeing the appearance without threatening bail
    agents or individual families with catastrophic loss because a
    defendant violates a condition imposed by the court. I believe
    that a violation of conditions is something that the defendant
    should pay for and that the non-appearance in court is
    something that a surety should pay for.
        I appreciate your time. I ask for your support of H.R.
    2286, the Bail Bond Fairness Act, so that I, as a professional
    bail agent, can once again serve the Federal court system in
    the traditional way of appearance.
        Thank you, Mr. Chairman.
        [The prepared statement of Ms. Braswell follows:]
                      Prepared Statement of Linda Braswell

        Mr. Scott. Thank you.
        Judge Miller?

              TESTIMONY OF THE HONORABLE TOMMY E. MILLER,
             UNITED STATES DISTRICT COURT, EASTERN VIRGINIA

        Judge Miller. We occasionally have these problems in our
    court also.
        Thank you, Chairman Scott and Congressmen Forbes and
    Lungren. I represent the Judicial Conference of the United
    States, which opposes this legislation.
        I would first like to comment that I found an error this
    morning in our commentary. The cite to the rule should be Rule
    46(f), not 46(e), in our testimony, and I think that every
    single other statement miscites it also. The rules were
    restyled in 2002, and the error has been carried over.
        Ms. Braswell has talked about the historical purpose of the
    bail bondsman, and I think it was not the Vaccaro case, but the
    Bail Reform Act of 1984 which has changed that historical
    purpose.
        I was an assistant U.S. attorney in 1984, and prior to the
    Bail Reform Act of 1984, we had to ask for outrageously high
    bonds that we knew the defendant could not meet in order to
    detain dangerous persons or persons likely to flee because
    there was no provision for detention.
        The Bail Reform Act of 1984 plus subsequent statutes have
    provided for detentions, and today approximately 50 percent of
    the defendants that appear in Federal court are detained, many
    of them based on the rebuttable presumption that Congress has
    presented to detain the defendant.
        So many of those individuals who had high bonds many years
    ago are being detained now, so the bonds simply are not
    available to be written because the defendants are detained
    without bonds.
        Congress directed that we are not to set financial
    conditions so high that a defendant not be able to meet bonds.
    My colleagues and I in setting a bond have an investigative
    report from the pretrial services officer, a very detailed
    report that deals with the family, the possibility of placement
    in a residence, third-party custodian, their job history, their
    financial status, drug use, alcohol use, criminal history, and
    we look at that in weighing what conditions should be met.
        In the Bail Reform Act, Congress has directed that we look
    through these various conditions before we select the least
    restrictive ones to ensure appearance and to prevent danger to
    the community, which, I think, is very important in this
    discussion.
        Least favored among these restrictions are financial surety
    bonds, according to the courts and the Bail Reform Act of 1984.
    So, as we deal with the 50 percent of the defendants who
    eventually are released on conditions, as we go through this
    list of 12 or 13 or 15, depending how you count it, conditions
    that we have, a surety bond is at the bottom.
        Less than 1,000 surety bonds a year are set by my 500
    magistrate judge colleagues in the United States. So that is 1-
    point-some-odd bonds per year per magistrate judge for
    corporate surety, according to some figures I have received. So
    there are very few corporate surety bonds even established.
    Some of them are for appearance. Some of them are for the
    appearance and compliance. That is the way the bond form reads.
    Ms. Braswell terms it performance.
        So there are very few of these to start with. The last time
    this proposal was before the Congress, the administrative
    office did a search of the bonds that were forfeited in the
    United States for appearance and compliance--in other words, a
    failure to comply. In 2000, there were 23 bond forfeitures in
    the 10 districts that used corporate sureties the most. In
    2001, there were 14 in those same 10 districts and 19 bonds
    forfeited in 2002 in the 10 districts that use corporate surety
    the most.
        I have been advised in preparing for this by the
    administrative office that they discovered some coding errors
    in some of the statistical information provided to Congress in
    2002. These errors appear to have overstated the number of
    cases in which a corporate surety bond was issued in some
    judicial districts. I am advised that the errors are not likely
    to materially affect your deliberation on this issue because
    reported forfeiture numbers were accurate.
        The administrative office intends to work with your staff
    over the next few weeks to provide the Committee with fresh
    data in this area.
        Thank you.
        [The prepared statement of Judge Miller follows:]
              Prepared Statement of the Honorable Tommy E. Miller

        Mr. Scott. Thank you.
        We have been joined by the gentleman from Massachusetts,
    Mr. Delahunt, and the gentleman from California, Mr. Lungren.
        I will now begin the questioning of the witnesses.
        Judge Miller, did I understand that only 1 percent, one
    bond per year per magistrate on average, is the surety bond?
        Judge Miller. It is less than 2 percent. There are about
    800 and some. Well, the figures were given to me yesterday for
    2006 as they were restudying these numbers. There were less
    than 900. I think he said 888 bonds using corporate surety
    either for appearance or appearance and compliance.
        Mr. Scott. You indicated that 50 percent of the defendants
    that you see kind of on average are released.
        Judge Miller. On conditions, yes. Various conditions.
        Mr. Scott. About 50 percent are detained.
        Judge Miller. Most of them are either drugs or guns or
    child pornography where the Congress has created a rebuttable
    presumption that they be detained.
        Mr. Scott. And so of those released, they are all on
    recognizance?
        Judge Miller. They are on various conditions of release. As
    you go through the language of the statute, we are supposed to
    release on personal recognizance, then unsecured bonds,
    supervision by pretrial services, put them in a halfway house
    and various other conditions. Each individual is treated
    separately and investigated separately by the folks from
    pretrial services.
        Mr. Scott. Now do you know what the situation is in State
    court?
        Judge Miller. Well, I tried to get statistics myself on
    Tuesday, and I was unable to find forfeiture statistics or
    conditions. I did talk to the clerk of court of the general
    district court in Norfolk, just out of curiosity.
        He tells me they have about 140,000 traffic and criminal
    cases per year, and that would be from speeding tickets to
    preliminary hearings for murder, and they have about 25
    corporate bail forfeitures per month in the general district
    court in Norfolk, a city of a population, as you know, under
    200,000.
        So that is all I could find on this very short notice. So
    there are as many forfeitures in the general district court in
    Norfolk in a month of corporate sureties as there are in the
    Federal courts in a year for these types of violations.
        Mr. Scott. Now the standard in State courts is the bond is
    just to guarantee the appearance?
        Judge Miller. That is correct.
        Mr. Scott. Why should there be a difference in standard
    between the State court and the Federal court?
        Judge Miller. I think the courts that have upheld the
    Vaccaro and the other courts that have upheld the appearance
    and compliance bond were actually trying to follow the mandate
    of Congress to, as we interpreted it or as they interpreted
    it--I have not written an opinion on this--work with the least
    restrictive conditions.
        When you get to having a surety bond that requires
    appearance and compliance, that is about the least favorite or
    least preferred, statutory or case law, condition, and if this
    bill passes, those folks that are in the final category, the
    appearance and compliance bond, that a judge is sitting there
    looking at them thinking that, ``Okay. We need a guarantee by
    surety that they will not use drugs, not threaten a witness.
    Otherwise they are detained,'' they will not be released on
    bond. They will be detained, if it was in front of me.
        Mr. Scott. Okay. Let's be clear. As you go down the list,
    if you have gotten down to surety plus conditions, the
    alternative is not surety because they already flunked that
    condition. The result will be detention. Is that----
        Judge Miller. I would say that is a probable outcome.
        Mr. Scott. And if you could release them on just
    appearance, bonded for appearance only, if you could have done
    that, you would have done that?
        Judge Miller. Yes.
        Mr. Scott. And since you cannot do that, you go down to one
    more condition, you lose that possibility, and the alternative
    is going to be detention.
        Judge Miller. Most likely, depending on the individual.
        Mr. Scott. Ms. Braswell, in the Federal system, is it true
    that there are very few bonds that are written on the Federal
    system right now?
        Ms. Braswell. Yes, sir.
        Mr. Scott. And did that start because of the conditions or
    did that start because of the Bond Reform Act 20 years ago?
        Ms. Braswell. To my knowledge, it is basically the
    conditions. The bail agent cannot assume that risk.
        Mr. Scott. Were they assuming the risk before that?
        Ms. Braswell. For the appearance, yes, sir.
        Mr. Scott. And were bonds issued in greater numbers prior
    to the conditions being imposed?
        Ms. Braswell. I can only speak from my personal knowledge.
    But of my personal knowledge, yes, sir, I wrote many more bonds
    in days prior than I do now.
        Mr. Scott. Okay.
        Mr. Forbes?
        Mr. Forbes. Thank you, Mr. Chairman.
        And, Judge Miller, we thank you for being here and
    certainly appreciate what you do and what the other judges do.
        Ms. Braswell, we appreciate what your industry does.
        And, certainly, we are appreciative of Mr. Keller and Mr.
    Wexler trying to find a fix for this problem.
        But, Judge Miller, I want to kind of follow up with what
    the Chairman was asking to see if I can get a handle on it. As
    I understand what you are saying, in this small number of
    people where there is required a corporate surety, by the time
    you get there, that is the least favorite that you would have.
        Is it your opinion--and I know you probably have not had
    time to get all the statistics on this--that the reason that is
    such a small number is not because of an unwillingness of
    bondsmen to write the bond, but because that is simply the
    smaller set of people that you are willing to release in that
    particular category? Is it because people are just not willing
    to write the bonds?
        Judge Miller. I am speaking from personal experience----
        Mr. Forbes. I understand. That is all you can do.
        Judge Miller [continuing]. And also talking with some of my
    colleagues around the country about this issue. I did research
    it in 1998, and in 2002. I was on the Criminal Rules Committee
    at the time.
        My colleagues and I are at this last point, and generally
    what happens in court--and it has only happened to me four or
    five items. I rarely use this compliance condition--is that the
    defendant and defense counsel come up and say, ``Judge, his
    mother and father, his grandmother, whomever, willing to put up
    the house. He will live at the house. They will monitor him as
    a third-party custodian, and they will look out for him, and
    they agree to come in and report if he violates the
    conditions.''
        Well, I do not just release the defendant on the defense
    attorney's say-so. I make sure the surety is there, the
    grandmother, the mother, father. I bring them up to the podium.
    I read to them what the conditions are of the third-party
    custodian. I was on the Education Committee, and this is what
    Magistrate Judges are trained to do. I read them to the
    conditions, and I go over the possibility of forfeiture of the
    house.
        Usually then, I will ask the parents, ``Do you have enough
    faith in your son that you would post your house, understanding
    these conditions?'' and make sure that they are not just
    looking at a piece of paper, that they tell me that they have
    faith in Johnny to re-appear and to comply with these
    conditions.
        On the rare occasions in which I have used the appearance
    and compliance bond, I have done all that, and then sometimes I
    still do not have faith in the parents and the defendant that
    he is going to show up, and I detain the person because----
        Mr. Forbes. Well, let me go to the ones where you did have
    the faith in it. Let me put on Ms. Braswell's hat now. I want
    you to answer this, though, Judge, if you can. What can the
    bondsmen do in a situation like that? Mr. Keller raises a good
    point.
        I know this is rare, but I have had situations where people
    have told me--I know one recently where a man was at a soccer
    game for his son, you know, a good guy. He is watching the
    soccer game. The soccer game gets delayed. He is torn between
    does he walk out on his son, does he stay for the last 15
    minutes. He stays for the last, I mean, literally, and then he
    gets caught in traffic going back, and he is late, you know,
    and his bond was not forfeited, but he is in a situation where,
    you know, those kinds of things do happen.
        What does a bondsman do? I mean, we get on them all the
    time, worried about whether they are using too much authority,
    well, you know, how they are going after people and those kinds
    of things. What do they do to police them from drug use and
    those kinds of things? So how can I look at Ms. Braswell and
    say, ``This is how you can monitor it.'' What do we ask them to
    do?
        Judge Miller. It is up to them to decide whether they want
    to run the risk. On the appearance and compliance bonds that I
    have dealt with, I have only dealt with family members, and I
    have personally advised them of the risk.
        Mr. Forbes. I just think that gets to a point where the
    bondsman really does not have many good----
        Ms. Braswell, what can you do in that situation? How do you
    monitor, you know, Defendant A if they are out and you are
    worried about whether they are going to be on drug use or
    whatever? How do you monitor that? I mean, I understand
    appearance. You can go grab them, you can get them in court,
    and you can find them. But that is tough enough. How do you
    monitor those other compliance conditions?
        Ms. Braswell. You cannot. You cannot. There is no efficient
    way. The only way that I could tell you--and it is not
    possible--is you would have to attach yourself to that person
    24 hours a day, 7 days a week. That is the only way that I or
    anyone else could guarantee anyone's behavior or performance.
        And not being wise here or smart-alecky, the truth, in
    fact, were if I could do that or if you could do that, we would
    not need to build new jails. We would not need to have judges.
    We would not need to have new courthouses because, if we could
    figure out how to do that, we would all have the solution to
    that problem, and----
        Mr. Forbes. Judge, my time is out, and the Chairman needs
    to move on to another questioner. But one of the things that
    just really concerned me--I understand your position and Ms.
    Braswell's, but it just seems to me that if you have that one
    defendant, and it is his mother or it is his father's property,
    maybe there is something intrinsically maybe that says, ``I do
    not want them to be at jeopardy.''
        I do not see what he has for the corporate surety most of
    the time. He is sitting there to them, and he is saying, you
    know, ``I do not know them.'' You know, ``I have just paid my
    premium.'' So we do not have that connection----
        Judge Miller. Well----
        Mr. Forbes [continuing]. And then I really do not know what
    realistically they have to enforce it.
        I am sorry. Go ahead, Judge.
        Judge Miller. From reading Ms. Braswell's statement, she
    talks about the collateralization of these bonds. Usually, if
    there is a corporate bond involved here, they have obtained as
    much collateral as they can from grandmother or father or
    mother and have deeded the house whenever they can get it--at
    least that is my experience with the bondsmen I know--so that
    if the bond is forfeited by the court, the bondsman pays the
    $50,000 bond and then goes and takes the house.
        That would be their decision to do after they paid the
    $50,000 under 46(f)(2), I believe it is. It is up to a U.S.
    district judge to determine whether to remit any or all of the
    $50,000.
        Mr. Forbes. Thank you. My time has expired.
        Mr. Wexler. Mr. Chairman, could Mr. Keller and I have an
    opportunity to respond, with your permission?
        Mr. Scott. Sure.
        Mr. Forbes. I did not mean to cut you off. I was just out
    of time.
        Mr. Scott. The gentleman from Florida, Mr. Wexler?
        Mr. Wexler. Just in response, respectfully, to the judge's
    testimony, I am somewhat astonished as to the logic that is
    being employed by the judicial branch.
        In essence, it seems to me that the judge's testimony
    entirely supports Congressman Keller's testimony, which is we
    have a two-tier system, those who can afford and those who
    cannot, and the issue in H.R. 2286 is not who should be
    detained and who should not. If a judge decides the person
    should be detained because they are a risk to the community,
    then they should be detained, and this bill does not affect
    anything. The only people this bill affects are those that a
    judge has determined should be released, and then the question
    is whether they have the means in which to employ a secured
    bond.
        The judge's testimony suggests that the judicial branch
    does not support the bill because it is rarely used in the
    Federal courts, although it is regularly employed in State
    courts. Or it is not regularly employed in Federal courts
    because they are not available in Federal courts because of the
    conditions that make it financially unreasonable for a bond
    company to provide the bond.
        So the effect is, as the judge very ably testified, he is
    in the position of asking Mom or Grandmom to come up. Well,
    what about the situation where Grandmom says, ``Well, I am not
    so sure.'' Well, then that is it! The judge has decided he is
    no risk. Grandmom says, ``I am not sure.'' So, even though the
    judge has decided he is no risk, he is back in.
        But if this bill were passed, the defendant would have
    another option, which is to go to a surety company, and if the
    surety company determines to offer the bond at whatever price
    is issued and it was available at a reasonable rate, then that
    defendant, who the judge has determined is not a risk to
    society, would not be detained.
        Mr. Keller. I just have two points to respond to the judge.
        I appreciate Judge Miller being here, but, first, the gist
    of his argument seems to be it is not that big a deal because
    there are very few bonds forfeited. That is because there were
    very few bonds issued because you had people sitting in jail
    because they do not have a Mercedes or BMW or $100,000 in their
    bank account as collateral.
        The case that I mentioned, the hypothetical case about what
    if you had a $100,000 bond and you crossed the jurisdictional
    line and then you forfeit, that was a real case. That is the
    Vaccaro case from 1995, and the court in the 9th Circuit there
    said, ``Well, if you do not like this situation where you can
    forfeit $100,000 bond just by traveling outside the
    jurisdiction, then Congress should fix it.'' That is what we
    are doing.
        The second thing I would point out is I really respect the
    judge and his organization, but let me be crystal clear: He is
    not speaking for all judges in the United States here by any
    means. For example, you have an original co-sponsor of this
    bill as Judge Ted Poe.
        Now, Judge Poe is from Texas. He is a tough judge. He is
    like the Clint Eastwood of judges. If I went before Judge Poe
    and saw that that is the guy I had drawn, I might just plead
    guilty then just to avoid being in front of him. But as tough
    and as great a reputation as he has, he thinks this is a good
    bill. He thinks this is fair. He thinks he still has the
    appropriate remedies to put people in jail who violate his
    conditions.
        And so, with that in mind, I still would urge folks to
    support this bill.
        Mr. Scott. I think the judge's testimony was speaking for
    the Judicial Conference, not for all judges, but for the
    conference. Is that right, Judge?
        Judge Miller. That is correct, except when I was giving my
    personal viewpoint, which I was requested to give.
        Mr. Scott. Okay. Thank you.
        The gentleman from Massachusetts?
        Mr. Delahunt. Yes, I understand, Ms. Braswell, you clearly
    do not have the resources to do the monitoring. And I
    appreciate that beyond appearance, given various presumptions
    that have been enacted by Congress and other concerns that the
    court may have based on Federal probation recommendations, the
    issue is if there are conditions that need to be monitored in
    the event--decided by a judge magistrate or a Federal
    magistrate--how do you do it?
        I guess my question is, why not go to a system where
    appearance is the sole avenue in terms of the issuance of a
    bond? But if there are additional concerns that the court has
    regarding a particular defendant, why not utilize the Federal
    probation service to do random monitoring to ensure compliance
    with those conditions?
        Judge Miller?
        Judge Miller. Well, we do. We do use Federal pretrial in
    some districts that----
        Mr. Delahunt. Okay, but my point is if we maximize their
    use in terms of the conditions that you as a Federal magistrate
    have in terms of compliance, why not go back to the original
    system of appearance being the essence of the issuance of a
    bond?
        Judge Miller. Well, as I stated in my opening statement, I
    believe Congress changed the philosophy back in 1984----
        Mr. Delahunt. Well, we can change it again given the----
        Judge Miller. You can.
        Mr. Delahunt [continuing]. Realities of what we are hearing
    here today.
        Judge Miller. The Bail Reform Act of 1984 had us look at
    both dangerousness and risk of flight, and----
        Mr. Delahunt. I understand.
        Judge Miller [continuing]. That is what we look through as
    we go through----
        Mr. Delahunt. I guess what I am saying to you is that it is
    an existing resource for the Federal probation service, okay?
        Judge Miller. It is. It is.
        Mr. Delahunt. They have a case load much less than most
    State probation services have. Is it, in your opinion, a
    significant additional burden to require the Federal probation
    service to insist upon compliance with conditions that a
    magistrate might feel are necessary?
        Judge Miller. That is one of the lesser steps that is used
    in this process, that we have the pretrial services supervise
    the defendant, and they do that. They require them to come in.
        Mr. Delahunt. I understand, but I am trying to solve the
    problem that has been articulated here by saying use them and
    take the concerns that you hear expressed here and utilize them
    as well as a surety bond so as to ensure appearance.
        Judge Miller. When the court sets a bond, ordinarily, we
    set, say, a $10,000 bond, and the defendant can post that bond
    themselves. This bill would say that if a defendant violates
    conditions of appearance or conditions of release, if he has a
    compliance bond, that we could not forfeit the $10,000 even if
    it is the defendant's money and he took a gun and was chasing
    down a witness. It is a broad bill. It is broader than the
    focus of----
        Mr. Delahunt. I yield back. I think I have made my point,
    and I suggest that we take a look at utilization of the Federal
    probation service.
        Ms. Braswell, do you have a response?
        Ms. Braswell. Yes, sir. Thank you.
        There are two types of bond forms that we are traditionally
    given that exist: the AO98, which is strictly an appearance
    bond form, and the AO98A, which is appearance and conditions.
        I can tell you that from talking with my colleagues and
    with the personal experiences that I have had, we are never
    given a choice. The choice belongs to the judge. They tell us
    which form we are going to use and prepare it for us to use. We
    are not given a choice there, and that was the one thing I
    wanted to say to you.
        I understand what you were trying to get at with your
    question to the judge, and what I stated in my statement is
    still a fact. We could guarantee appearance, and that is it. We
    are not taking the judicial discretion from the judge. We are
    not going to interfere with his discretion. We are not going to
    interfere with the process.
        The judge can put whatever conditions on the bond that he
    so wishes, whether it be the defendant home at 10 or that he
    does not cross the State line or whatever, get arrested again,
    and then he has the discretion of ordering that bond revoked or
    whatever he would like to do--make greater conditions, order
    Federal pretrial services to pick this defendant up, to monitor
    his behavior. He still has that discretion. This changes none
    of that.
        Mr. Scott. The gentleman from California?
        Mr. Lungren. Thank you very much, Mr. Chairman.
        I am amazed when I come to hearings, and I get to learn
    things. In 1984, the Bail Reform Act was part of the
    Comprehensive Crime Control Act which passed the House of
    Representatives on a motion to recommit on a continuing
    resolution. I happened to be the author of that motion to
    recommit. I spent several years preparing for that.
        I did, in fact, lead the charge to change bail in the
    United States on the Federal system so that, in fact, you could
    take into consideration dangerousness in the community, so that
    you could have pretrial detention under certain circumstances,
    but I am amazed to learn that I intended to change the bail
    surety system in the United States.
        Of course, having had experience with the 9th Circuit, it
    does not surprise me that they would tell me things that I did
    not know, since they often find things in the Constitution that
    are difficult, if not impossible, to find, in the first
    instance.
        I understand here where we are talking about the seldom use
    of surety bonds in the Federal system. That is the point! The
    Federal system has basically written out surety bonds. The
    Federal courts have basically said, ``We do not want them,''
    and the 9th Circuit allowed you to do that.
        I think we have a decision here as to whether or not we
    think that the Federal system is so different than the State
    system, most of which State systems have adopted pretrial
    detention along the lines that we have on the Federal system
    for violent criminals, but have not gotten rid of surety bonds
    and have not done it in the way that it has been done in the
    Federal system.
        So I, for one, having a little bit of experience on this,
    believe that, number one, I am very proud of the Bail Reform
    Act because I believe that the people who are a danger to the
    community ought to be held, if that determination is made prior
    to trial under those circumstances that we established in the
    law.
        But, at the same time, I believe that the bail system,
    having looked at it for 20 or 30 years, works pretty well. It
    actually is a pretty good system that allows us to have third
    parties go out and round up these characters if they do not
    show up for trial, which, otherwise, would be required by our
    system.
        Or, Your Honor, with all due respect, if what you are
    telling us is that the threat is by the Federal courts that if
    we pass this, you are not going to let people out that you
    think ought to be out, frankly, we are going to take that risk.
    I do not want people who are a danger to the community out
    there, but that is the judgment that you folks make, and if you
    think that someone is a danger to the community prior to trial,
    then that is the decision you ought to make.
        But please do not suggest that it is now going to be our
    fault that you are not going to be letting people out that you
    think ought to be out because we have changed this. All we are
    changing is whether or not the bail bonds person is going to be
    responsible for daily monitoring these individuals to make sure
    that they do comply with your other conditions as opposed to
    the traditional notion we have had in this country for, I
    think, going back almost to the beginning of the republic that
    bail bondsmen are a third-party mechanism by which we guarantee
    people show up when they are supposed to show up.
        Now, if we want to change that, it seems to me Congress
    should change that, but I do not think the 9th Circuit should
    be telling us what they think we ought to do or they think we
    did when I cannot recall a single person discussing it in all
    the time that we spent coming up with the Bail Reform Act
    suggesting we wanted to get rid of surety bonds in this
    circumstance.
        So, Your Honor, if you and the Judicial Conference have
    specific areas of overreach in this bill, as you just suggested
    in your last reply, we would love to see that so if amendments
    are necessary to ensure that we are not overreaching, we would
    be happy to do it.
        I just want to make sure that we adjust the problem that
    exists now, which is the Federal system has basically
    determined you do not want surety bonds. That was never the
    intention of Congress as far as I can understand. But, then
    again, I was just the chief author of the legislation.
        I thank you for the time.
        Mr. Scott. Thank you.
        Let me ask a couple other questions.
        Oh, I am sorry. The gentleman from North Carolina, Mr.
    Coble?
        Mr. Coble. Thank you, Mr. Chairman. I had a Transportation
    hearing, and I just got here. So I will have no questions at
    this time.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        Let me ask a couple other questions.
        Now, Judge Miller, as I understand the bill, this does not
    prohibit you from, as a condition of release, imposing
    behavioral standards?
        Judge Miller. No, it does not.
        Mr. Scott. What it does is if there is a violation, it
    limits your sanctions in that you cannot forfeit the bond? You
    can impose other sanctions, revoke the bond or detain the
    person from then on. You could fine the person and try to get
    the fine from somewhere other than the bond.
        Judge Miller. Fine them for contempt? Is that what you are
    suggesting?
        Mr. Scott. Yes, I guess. It is essentially what you are
    doing when you revoke the bond. Are there other things that you
    could do other than revoke the bond pretrial?
        Judge Miller. Change the conditions and perhaps add
    conditions to the bond. Various districts have different kinds
    of conditions.
        Mr. Scott. But, I mean, we ascertained that when you get
    down to the list and release without conditions on a bond, if
    you fail that, then you get down to release with conditions.
    You can still get down to that and release them with the
    conditions. The sanction, however, could not be, if this bill
    passes forfeiting the bond.
        Judge Miller. Could not forfeit the bond whether it was
    posted by a corporate surety, by a parent or by the defendant
    who violated the conditions.
        Mr. Scott. If the defendant posted bond himself and you
    have ascertained that, then you could get that with a fine. Is
    that right?
        Judge Miller. You would have to go through contempt
    procedures. That is the only way I can think of doing it, and
    that is----
        Mr. Scott. Then how do you get money out of the bond
    without any similar kind of proceeding?
        Judge Miller. If it is a forfeited bond, the bond has been
    posted with the court. The defendant posted the $10,000, and we
    already have the money in hand. We just turn it over to the
    Treasury.
        Mr. Scott. Well, if you are going to turn over the money
    that is essentially in escrow to the Treasury, how do you do
    that without any of the same proceedings you would need to get
    money out of his pocket? You are hitting him for, say, $10,000.
    How do you do that without the same kind of proceedings that
    you would fine him $10,000?
        Judge Miller. Well, there would be two separate
    proceedings. The procedure to forfeit the bond is a separate
    procedure that we go through pursuant to Rule 46. That would be
    a show cause hearing.
        If a corporate surety was involved, they would be notified.
    They could come in and defend the reasons for remission. A
    district judge would determine that.
        For contempt, it would be a totally separate proceeding
    with notice to the defendant that he is in contempt of court
    for these various reasons, for failing to follow the order of
    the court setting conditions of release.
        So it is separate issues.
        Mr. Scott. So, essentially, by posting the bond, you have
    given up your rights to be tried on the question of whether you
    are going to lose $10,000.
        Judge Miller. If you posted a $10,000 bond, that money
    comes back to you. If you appear----
        Mr. Scott. That is right. And if you want to keep it and
    not give it back to the defendant, he does not have the same
    kind of right as he would if it were a straight-up bond.
        Judge Miller. Different types of rights. I think a bond
    would be a civil procedure so you would have a preponderance of
    the evidence standard as to whether he violated the condition.
    If it was a fine, a criminal fine, you, of course, have to
    prove it beyond a reasonable doubt. But that would be a
    distinction that leaps to my mind right now.
        Mr. Scott. Do you have other questions?
        The gentleman from Virginia?
        Mr. Forbes. Thank you, Mr. Chairman.
        And, Judge, this is for you and for Ms. Braswell.
        Ms. Braswell, I am not conversant on the exact case law now
    as to the rights of the bondsman as to the individual that they
    have bonded out, but I know under a lot of the State law, it is
    pretty strong. You can do pretty much what you want in grabbing
    that individual whenever you want to grab that individual if
    you think that they have violated something or may be getting
    ready to abscond. I could be wrong on that.
        Judge, is there any differentiation between the rights and
    the processes that you would go through if you have somebody
    under a pretrial release process and you perceive that they
    have not been in compliance versus what the bondsman might be
    able to do in that same situation if they perceive they were
    not in compliance? And maybe I have not articulated that well.
    Is that----
        Judge Miller. The bondsman, under Federal statute, can
    return the defendant to court.
        Mr. Forbes. Anytime they want to?
        Judge Miller. I think they have to have a reason, just as
    pretrial services tells----
        Mr. Forbes. I do not think they do. I mean, I think Ms.
    Braswell will tell you if you just feel that they are going to
    be leaving the State or whatever, I think--and some people out
    there are shaking their heads, so I do not know.
        Ms. Braswell, you tell me. What are your rights?
        Ms. Braswell. Thank you, sir.
        Taylor v. Taintor, which was the United States Supreme
    Court decision 100-some-odd years ago, gives the bail agent the
    right to apprehend and surrender the defendant at any time.
        In some State laws, you are still allowed to apprehend the
    defendant based on that decision, but there are some State
    rules and regulations in certain States that if you put this
    individual back prior to his failing to appear that you might
    have to return some of his money. But Taylor v. Taintor gives
    us clear and distinct rights to apprehend the defendant at any
    time.
        Mr. Forbes. I did not realize the case, but I thought that
    was the law.
        But, Judge, if we let them out on a pretrial supervised
    basis, how do you then determine that they may be in non-
    compliance? Do they go through all the due process rights and
    have hearings on that?
        Judge Miller. The pretrial services officer will write a
    violation report to me. He will affirm it under oath. I will
    issue a warrant for their arrest. The marshals will arrest
    them. Then we will have a hearing to determine whether they
    should be revoked. Eighteen USC 31 49 is the surrender of an
    offender by a surety, and Ms. Braswell is correct. She can
    bring them in for any reason.
        Then, subsequently, we would have a hearing just as if the
    marshals had arrested him on my warrant to determine whether it
    should be revoked and to use this language, and they absolve
    the surety of responsibility to pay all or part of the bond in
    accordance with Rule 46.
        Mr. Wexler. Mr. Chairman? Could we just have the one quick
    opportunity to respond again?
        Mr. Scott. Yes, sir.
        Mr. Wexler. With all due respect to the judge again, I have
    sat here trying to figure out the example that the judge gave
    in terms of the gentleman who in theory would be provided
    release based on the surety bond, who then waved around the
    gun, and then the judge gave the example of this bill would
    allow--I think in effect what the judge was saying is one of
    the reasons why the bill ought to become law is because this
    bill would allow somehow that defendant to be the beneficiary
    of his errant behavior and would not have his money forfeited.
        I am trying to understand the logic behind the example
    because the judge defends the current situation, which,
    admittedly, he testified is rarely, if ever used. In 1 percent
    of the cases is a surety bond issued.
        So, under the current system, if a judge determined that
    that defendant should be released--and that is the only time
    this would be relevant because if a judge determined he should
    not be released, he would not be out to be waving his gun in
    the first place--under the current system, 99 out of 100 times,
    the defendant that the judge let out would wave his gun and
    there would be no money lost anyway!
        So how is it that if we pass this bill, we would somehow be
    rewarding this behavior that today is not rewarded? I cannot
    figure it out.
        Mr. Scott. I would like to thank the witnesses for their
    testimony.
        The Members may have additional written questions for the
    witnesses which will be forwarded to you, and, if so, I would
    ask you to answer them as promptly as you can so they can be
    made part of the record.
        We have several documents for the record, two written
    statements for the record: One has been provided by Mr.
    Gallagher of the Surety & Fidelity Association; the second has
    been provided by Mr. Roche, past president of the Professional
    Bond Agents.
        [The information referred to follows:]
                  Prepared Statement of Edward G. Gallagher,
                  The Surety & Fidelity Association of America

                  Prepared Statement of Armando Roche, MCBA,
         Past President, Professional Bail Agents of the United States

        Mr. Scott. There are other things coming before the
    Committee. The hearing is now adjourned.
        [Whereupon, at 11:09 a.m., the Subcommittee was adjourned.]