[Congressional Record Volume 153, Number 103 (Monday, June 25, 2007)]
[House]
[Pages H7033-H7036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     BAIL BOND FAIRNESS ACT OF 2007

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 2286) to amend title 18, United States Code, and the Federal 
Rules of Criminal Procedure with respect to bail bond forfeitures.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                H.R. 2286

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Bail Bond Fairness Act of 
     2007''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--The Congress makes the following findings:
       (1) Historically, the sole purpose of bail in the United 
     States was to ensure the defendant's physical presence before 
     a court. The bail bond would be declared forfeited only when 
     the defendant actually failed to appear as ordered. 
     Violations of other, collateral conditions of release might 
     cause release to be revoked, but would not cause the bond to 
     be forfeited. This historical basis of bail bonds best served 
     the interests of the Federal criminal justice system.
       (2) Currently, however, Federal judges have merged the 
     purposes of bail and other conditions of release. These 
     judges now order bonds forfeited in cases in which the 
     defendant actually appears as ordered but he fails to comply 
     with some collateral condition of release. The judges rely on 
     Federal Rule of Criminal Procedure 46(f) as authority to do 
     so.

[[Page H7034]]

       (3) Federal Rule of Criminal Procedure 46(e) has withstood 
     repeated court challenges. In cases such as United States v. 
     Vaccaro, 51 F.3d 189 (9th Cir. 1995), the rule has been held 
     to authorize Federal courts specifically to order bonds 
     forfeited for violation of collateral conditions of release 
     and not simply for failure to appear. Moreover, the Federal 
     courts have continued to uphold and expand the rule because 
     they find no evidence of congressional intent to the 
     contrary, specifically finding that the provisions of the 
     Bail Bond Act of 1984 were not intended to supersede the 
     rule.
       (4) As a result, the underwriting of bonds for Federal 
     defendants has become virtually impossible. Where once the 
     bail agent was simply ensuring the defendant's physical 
     presence, the bail agent now must guarantee the defendant's 
     general good behavior. Insofar as the risk for the bail agent 
     has greatly increased, the industry has been forced to adhere 
     to strict underwriting guidelines, in most cases requiring 
     full collateral. Consequently, the Federal criminal justice 
     system has been deprived of any meaningful bail bond option.
       (b) Purposes.--The purposes of this Act are--
       (1) to restore bail bonds to their historical origin as a 
     means solely to ensure the defendant's physical presence 
     before a court; and
       (2) to grant judges the authority to declare bail bonds 
     forfeited only where the defendant actually fails to appear 
     physically before a court as ordered and not where the 
     defendant violates some other collateral condition of 
     release.

     SEC. 3. FAIRNESS IN BAIL BOND FORFEITURE.

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

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Virginia (Mr. Forbes) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous matter on this bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Members of the Congress, of the House here, the bail bond system in 
our country is under considerable pressure. Some would even say that it 
is broken. The reason is that Federal courts increasingly use bail 
bonds to ensure that a defendant appear in court but it also is used to 
make sure that a defendant complies with other requirements while 
awaiting trial.

                              {time}  1600

  As a result of a combination of these factors, there have been 
critical problems that have developed. When you merge the use of bail 
bonds, there is presented a greater risk of forfeiture, and, thereby, 
this has made it much more difficult, especially for those with limited 
means to obtain these bonds. Frequently, the amount of the bond goes 
up, sometimes a great deal.
  Now, historically, of course, the sole purpose of a bail bond was to 
ensure that a defendant appears in court. When a bail bond is also used 
to guarantee compliance with collateral conditions of release, a court 
may direct the bond to be forfeited should the defendant violate any of 
these conditions, even if the defendant appears in court. This, of 
course, heightens the risk of forfeiture and makes it now virtually 
impossible for many persons to obtain these bonds, because the cost of 
the bond goes up.
  Also, merging the traditional purpose of bail bonds with other 
conditions of release creates a perverse situation where, ironically, 
there are less incentives for the defendants who violate these 
conditions to then appear in court. As a result, thousands of 
defendants are failing to come to court, which increases the expense 
and effort by Federal law enforcement officers to secure their 
presence.
  Also, family members and friends of the defendant, who pledge their 
homes, put the house up for capital, life savings or other assets, are 
at greater risk of losing their property as well. So, fewer family 
members and friends feel that they can afford to take the risk of 
assisting and procuring a bond.
  Now, while wealthy defendants can use their own assets for collateral 
and gain pretrial release, those less-wealthy defendants are 
incarcerated before trial even when there is little or no risk of 
flight or threat to the public. Remanding a defendant into pretrial 
detention when he or she is neither a flight risk nor a danger to 
society also creates an undue financial burden on our Nation's prison 
system.
  It's also highly unfair to an accused who, of course, thus far, has 
not been convicted yet of anything. So, hence, the Bail Bond Fairness 
Act.
  What this measure does is attempt to address the problem by restoring 
the historical purpose of bail bonds; namely, that they be used solely 
to ensure the defendant's physical presence before a court. Under this 
measure, a Federal judge has the authority to declare a bail bond 
forfeited only under the circumstances of where the defendant actually 
fails to appear in court as ordered, and not simply because the 
defendant has violated some collateral condition of release.
  So I urge my colleagues to support this bill and am very pleased to 
commend the leaders and members of the subcommittee on crime for 
helping us bring this measure forward in such an expeditious manner.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FORBES. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of H.R. 2286, the Bail Bond Fairness 
Act of 2007. Bail bonds are rare in Federal court, and this bill will 
ensure that bail bondsmen and defendants are treated fairly.
  This legislation amends the Federal code to prohibit a judicial 
officer from forfeiting a bail bond when a defendant violates a 
performance condition other than failing to appear in court. On 
balance, I think it is unfair to hold bail bondsmen accountable for 
compliance with performance conditions such as drug testing, curfews 
and other nonappearance-related conditions.
  A bail bondsman should be held accountable for ensuring the defendant 
appears at all court dates. It is hard to justify authorizing a court 
to forfeit a bond for performance conditions that a bail bondsman 
cannot enforce.
  I want to acknowledge the commitment of my colleagues, Congressman 
Wexler and Congressman Keller, who sponsored this bill and have 
demonstrated leadership on this issue. For these reasons, I support the 
bill and urge my colleagues to do so as well.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. I commend the ranking member, Mr. Forbes, for his good 
work on this measure.
  Mr. Speaker, I yield as much time as he may consume to the 
subcommittee chairman on crime, another gentleman from Virginia (Mr. 
Scott).
  Mr. SCOTT of Virginia. Mr. Speaker, I rise today in support of H.R. 
2286, the Bail Bond Fairness Act of 2007. The legislation was 
introduced by Representative Wexler and Representative Keller on May 10 
of this year and largely mirrors several other bipartisan bills 
introduced in the last 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 even when the 
defendants, in fact, appear in court, but they have violated collateral 
conditions of pretrial release.
  Although actual bail forfeitures of bonds for violating collateral 
conditions are rare, and one of the reasons is that bail bonds, in 
fact, are rare, one reason cited is that some Federal judges now allow 
defendants to deposit their own funds in amounts that would be equal to 
the premium of a commercial bond underwriter, making the commercial 
bond unnecessary. Even so, the practice of attaching ancillary 
conditions to the issuance of a bond has created a barrier to pretrial 
release, because the risk of bond forfeiture has forced many commercial 
bond underwriters to avoid the Federal system altogether.

[[Page H7035]]

  We find that commercial bond underwriters will opt to offer their 
services to defendants in the State system where a risk of loss is 
lower because they only have to be concerned about the defendant's 
appearance, not his behavior, or where they also maintain that friends 
and family of defendants are reluctant to post a bond for defendants 
because they cannot risk their homes or life savings based on a 
person's behavior. They may be able to risk it assuming he will show up 
in court.
  H.R. 2286 would return the use of bail bonds to the historic purpose 
of limiting a judge's authority to order a bond forfeited to a 
defendant's failure to appear physically in court. It is important to 
note that the bill does preserve a judge's authority to impose 
conditions of release and to revoke the pretrial release and order 
pretrial custody, should a defendant violate any conditions of pretrial 
release. But so long as a defendant actually appears in court, the bond 
should not be revoked.
  I strongly urge my colleagues to support the bill.
  Mr. FORBES. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, you have heard from the other speakers here today about 
the fairness of this measure, and it certainly is a measure of 
fairness, how we treat bail bondsmen. And also as the chairman has 
pointed out, this is a matter of fairness of how we treat individuals 
who need bond, which they may not otherwise may have.
  Even though this is a measure that is very fair, even fair measures 
don't make it into law without the hard work of individuals. That's why 
I want to compliment Congressman Wexler on the good job that he has 
done. Congressman Keller, who wanted to be here today to speak on this 
bill, has worked very hard and tirelessly for it in the committee. 
Unfortunately, his flight has been delayed, and he won't be here today. 
But I know if he were here, he would speak on the record here as he has 
spoken in the committee on this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield as much time as he may consume to 
one of the authors of this measure, the gentleman from Florida (Mr. 
Wexler).
  Mr. WEXLER. Mr. Speaker, I first and foremost want to thank Chairman 
Conyers for his cooperation and great support for H.R. 2286. I also 
want to thank Ranking Member Lamar Smith for working in such a 
bipartisan fashion.
  I especially want to thank Congressman Keller, Mr. Forbes mentioned 
just a moment ago. Mr. Keller and I have worked hand in hand in pushing 
the Bail Bond Fairness Act, and I know very much that he wished to be 
here to speak this evening.
  I also want to thank Mr. Forbes for his very kind words and his 
cooperation as well, as well as the subcommittee chairman, Mr. Scott of 
Virginia.
  Mr. Speaker, the Bail Bond Fairness Act will ensure equality and 
fairness for all Federal defendants and will make it possible for bail 
agents to once again write bonds in Federal courts. This bill addresses 
a serious problem in the Federal bail bond system, created by 
requirements that bail agents not only ensure the appearance of 
defendants in court, but also guarantee other conditions beyond the 
agent's control, such as alcohol consumption and curfews.
  As a result, bail bond agents have stopped writing bonds in Federal 
cases, and lower-income defendants have become unable to post bail 
while wealthier individuals do so easily. The result is that poor 
defendants can't afford bail and must, therefore, stay in jail at 
taxpayer expense.
  H.R. 2286 would remedy these problems and allow professional bail 
agents to return to the Federal court system. The bill mandates that a 
bail bond may be forfeited only if a defendant fails to appear in court 
as ordered.
  This legislation reaffirms the original purpose of a bail bond, to 
guarantee the defendant appears in court. Bail agents must be allowed 
to serve this purpose and cannot be expected to serve as full-time 
nannies for defendants whom judges determine are safe to be released.
  It is important to note that the Bail Bond Fairness Act totally 
preserves the authority of the judge to grant or refuse bail. The 
judge, and the judge only, will continue to make a determination on 
flight risk and any possible threat to the community.
  Judges will still have the discretion to determine who is eligible 
and who is not for pretrial release, what conditions accompany that 
release, and whether or not a suspected criminal is a flight risk. We 
all agree that if a suspected criminal is a threat to the society, to 
the community, he or she should stay in jail.
  The bottom line is that bail bonds should guarantee appearance in 
court. Any other appropriate conditions set by the judge, such as 
alcohol or drug consumption, should not be tied to the bond.
  This bill enjoys a great deal of bipartisan support, and I again want 
to thank Congressman Keller, my colleague from Florida, as one of the 
prime sponsors and again thank Chairman Conyers.
  Mr. FORBES. Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, I ask my colleagues to support the bill.
  Mr. Speaker, H.R. 2286 restores the use of bail bonds to the 
traditional purpose of ensuring that a defendant appears in court as 
directed. It removes the risk that a defendant's family and friends 
will forfeit their homes, savings, or other assets even though the 
defendant appears, just because of failure to comply with some 
unrelated collateral condition. And perhaps most importantly, it will 
increase the appropriate availability of bail bonds to all, not just 
the wealthy. I urge my colleagues to support this bill.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of 
H.R. 2286, the ``Bail Bond Fairness Act of 2007.'' I urge my colleagues 
to join me in voting to report this legislation favorably to the House. 
I am confident that working together we can address and resolve the 
real challenges regarding bail bond practices in the Federal judiciary.
  H.R. 2286 reforms the current practice of placing performance-based 
pretrial release conditions on bail bonds. This practice apparently has 
had the unintended consequence of prompting some commercial bond 
underwriters to avoid the Federal system and placing a heavy risk on 
family and friends of defendants who would collateralize property to 
satisfy a bond. As a result, many defendants are being incarcerated 
pending disposition of their criminal cases who would otherwise not be 
confined.
  H.R. 2286 restores bail bonds to their historic purpose by 
prohibiting the forfeiture of a bail bond in all situations except for 
a defendant's failure to appear. It does this by amending Rule 46(f)(1) 
of the Federal Rules of Criminal Procedure by striking ``a condition of 
the bond is breached'' and inserting ``the defendant fails to appear 
physically before the court.'' The bill, however, preserves a judge's 
ability to revoke a defendant's bail status and order pretrial 
detention should a defendant violate any condition of pretrial release.
  Mr. Speaker, to better understand the problems in the Federal bail 
bond system and to evaluate the efficacy of the H.R. 2286, this 
subcommittee held a legislative hearing at which we heard from an 
impressive panel of witnesses, which included: The Hon. Robert Wexler, 
Congressman, Florida 19th District; the Hon. Ric Keller, Congressman, 
Florida 8th District; Ms. Linda Braswell, MCBA, Braswell Surety 
Services, Inc., Stuart, Florida; and Hon. Tommy E. Miller, Magistrate, 
United States District Court, Eastern Virginia.
  Mr. Speaker, it is important for us to remember that the right to 
bail is guaranteed by the Eighth Amendment to the U.S. Constitution. 
Historically, the sole purpose of affording bail to a defendant is to 
ensure the defendant's appearance in court. In recent years, however, 
Federal judges have taken to merging the purposes of bail with other 
conditions of release and in many cases have been ordering bonds 
forfeited even in cases in which the defendant actually appears in 
court as ordered. The bail is ordered forfeited by the court upon a 
determination by the court that the defendant failed to comply with 
some collateral condition of release.
  In support of these forfeiture determinations judges rely on Federal 
Rule of Criminal Procedure 46(f) as authority. For example, if the 
defendant uses illegal drugs, fails to maintain a job, travels beyond a 
certain area, the defendant's bail may be revoked, and the defendant 
returned to jail and the bond forfeited.
  Federal Rule of Criminal Procedure 46(f) has been upheld by the 
courts against challenge. For example, in United States v. Vaccaro, 51 
F.3d 189 (9th Cir. 1995), the court held that the rule 46(f) authorized 
bond forfeiture for violation of collateral conditions of release and 
not simply for failure to appear. Moreover, courts have cited 
congressional failure to act to change this ruling as ratification that 
it is correct.

[[Page H7036]]

  Mr. Speaker, the consequences of forfeiting bond as a method of 
monitoring a defendant's performance rather than for its historically 
narrowly tailored purpose are several. First, because bond writers are 
forced to consider the defendant's performance and behavior while on 
pretrial release, the risk to bond agents has increased dramatically, 
forcing them to adhere to strict underwriting guidelines. The strict 
guidelines adversely and disproportionately affect poor and 
disadvantaged defendants by exacerbating the difficulty in obtaining 
pretrial release. This means, of course, that only defendants with 
significant assets are afforded the benefits of pretrial release. Poor 
defendants are therefore incarcerated before conviction, even those who 
pose no significant risk of flight and no threat to the public.
  Second, family members of the defendant or anyone willing to raise 
collateral to help procure a bail bond for a loved one are also put at 
undue risk. This is because a person who puts up his or her home or 
other assets as collateral may nevertheless lose their property even if 
the defendant attends court appearances and is not a threat to 
the community. Thus, fewer friends and family are willing to assist in 
procuring a bond and those who do may unjustly lose their assets.

  Mr. Speaker, a third unintended consequence of this practice of bail 
forfeiture for collateral pre-trial release violations places an undue 
financial burden and physical strain on the prison system. Last, 
revoking a defendant's bond for performance issue such as unemployment 
reduces considerably a defendant's incentive to make court appearances. 
Consequently, bond revocation for a performance matter has created a 
flight risk of a defendant who otherwise may not have been.
  In short, placing performance-based conditions on a bail bond strays 
from the historic purpose of a bail bond, which is to ensure the 
appearance of a defendant before the court as ordered. The avowed 
intent of H.R. 2286, sponsored by Congressman Wexler, is to restore 
bail bonds to their historic purpose by prohibiting the forfeiture of a 
bail bond in all situations except for a defendant's failure to appear.
  It does this by amending Rule 46(f)(1) of the Federal Rules of 
Criminal Procedure by striking ``a condition of the bond is breached'' 
and inserting ``the defendant fails to appear physically before the 
court.'' The bill, however, preserves a judge's ability to revoke a 
defendant's bail status and order pretrial detention should a defendant 
violate any condition of pretrial release.
  Mr. Speaker, I urge all members to support this much needed and 
thoughtful legislation.
  Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Ross). The question is on the motion 
offered by the gentleman from Michigan (Mr. Conyers) that the House 
suspend the rules and pass the bill, H.R. 2286.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________