[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.
____________________