[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.]

                                 
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