[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
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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.]