[House Report 110-208]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-208
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BAIL BOND FAIRNESS ACT OF 2007
_______
June 22, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2286]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 3
New Budget Authority and Tax Expenditures........................ 3
Congressional Budget Office Cost Estimate........................ 4
Performance Goals and Objectives................................. 5
Constitutional Authority Statement............................... 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Agency Views..................................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 8
Purpose and Summary
H.R. 2286, the ``Bail Bond Fairness Act of 2007,'' amends
the Federal Criminal Code to prohibit a Federal court from
declaring forfeited a bail bond for violation of a specified
collateral condition of release. In so doing, the legislation
seeks to restore the use of bail bonds to their historical
origin, which traditionally focused exclusively on guaranteeing
a defendant's physical presence in court.
Background and Need for the Legislation
Historically, the sole purpose of affording bail to a
defendant has been to ensure his or her appearance in court.
Currently, however, Federal judges have merged the purposes of
bail and with other conditions of release. As a result, the
bonds are ordered forfeited in cases in which the defendant
appears as required, but fails to comply with some collateral
condition of release. For example, if the defendant uses
illegal drugs, fails to maintain a job, or travels beyond a
certain area, the court may order that: (1) the defendant's
bail be revoked; (2) the defendant be returned to jail; and (3)
the bond be forfeited.
Section 3142(e) of title 18 of the United States Code
provides that a judicial officer may order a defendant to be
detained before trial if there are no reasonable conditions to
ensure the defendant's appearance in court and the defendant is
a threat to a witness or the community.\1\ Thus, risk of flight
and whether the defendant presents certain threats are the sole
statutory criteria for detaining a defendant.
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\1\ 18 U.S.C.A. Sec. 3142(e) (2006).
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Nevertheless, the Federal courts, as authority for their
expanded use of bail bonds, rely on Federal Rule of Criminal
Procedure 46(f), which has withstood repeated court challenges.
For example, the Ninth Circuit held that a court, pursuant to
this Rule, may order a bond to be forfeited for a defendant's
violation of collateral conditions of release and not simply
for his or her failure to appear.\2\
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\2\ United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995).
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The adverse consequences of forfeiting a bond as a method
of monitoring a defendant's performance--rather than for its
historically narrowly-tailored purpose--are significant. First,
bond writers, which include commercial underwriters as well as
the families and friends of the defendant, risk forfeiting
their assets when a defendant fails to meet all pretrial
release conditions, including the defendant's performance. To
protect their assets, these bond writers must monitor the
defendant's performance and behavior while on pretrial release,
a virtually impossible task. As the risk to bond agents has
increased dramatically, they are refusing to provide bonds and,
as a result, the availability of these bonds is virtually
nonexistent in the Federal system.
Second, the effect of restricting the availability of bail
bonds has a disparate impact on wealthy and poor defendants.
Irrespective of their risk of flight or danger to the
community, the elimination of third-party bonds renders poor
and disadvantaged defendants less able to obtain pretrial
release. Conversely, wealthier defendants who can use their own
assets for collateral can then post their own bond without
resorting to third parties. Consequently, defendants with
significant assets are afforded pretrial release, while poor
defendants are incarcerated before trial regardless of their
risk of flight and threat to the public, which would appear to
conflict with section 3142(e).
Third, family members of the defendant or anyone willing to
raise collateral to help procure a bail bond are also put at
undue financial risk. Like the increased risk to bond writers,
persons putting their homes and at risk may lose their assets,
even if the defendant attends court appearances and is not a
threat to the community. Thus, fewer family members and friends
are willing to assist in procuring a bond and those who do may
unjustly lose their assets. Remanding a defendant into pretrial
detention when he or she is not a flight risk nor a danger to
witnesses or the community also creates an undue financial
burden on our Nation's prison system.
Fourth, should a defendant's bond be revoked for a
performance issue such as unemployment, the defendant's
incentive to make court appearances is diminished.
Consequently, the bond revocation for a performance matter has
created a flight risk defendant who may not have been.
Hearings
The Committee's Subcommittee on Crime, Terrorism and
Homeland Security held 1 day of hearings on H.R. 2286 on June
7, 2007. Testimony was received and heard from Representatives
Robert Wexler (D-FL) and Ric Keller (R-FL); Linda Braswell,
MCBA, Professional Bail Agents of the United States; and United
States Magistrate Judge Tommy E. Miller, Eastern District of
Virginia. Additional statements were also submitted for the
record by Edward Gallagher, General Counsel, The Surety and
Fidelity Association of America; and Richard A. Hertling,
Principle Deputy Assistant Attorney General, United States
Department of Justice.
Committee Consideration
On June 7, 2007, the Subcommittee on Crime, Terrorism and
Homeland Security met in open session and ordered the bill,
H.R. 2286, favorably reported, by voice vote, a quorum being
present. On June 12, 2007, the Committee met in open session
and ordered the bill H.R. 2286 favorably reported without
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2286
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2286, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 22, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2286, the Bail
Bond Fairness Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Daniel
Hoople, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2286--Bail Bond Fairness Act of 2007.
H.R. 2286 would prohibit the forfeiture of a bail bond in
Federal court based on a defendant's failure to abide by
certain conditions of their temporary release. Under current
law, a Federal judge may grant a criminal defendant temporary
release pending trial. Such a release may include conditions
such as travel restrictions, abiding by a curfew, maintaining
employment or attendance in an educational program, and part-
time incarceration. Because such conditions often include a
pledge of assets, defendants may obtain a bail bond to act as a
surety for their future appearance in court. Upon failure to
appear in court, or upon violation of another condition of
release, a judge may declare the bond forfeit. H.R. 2286 would
amend current law to allow forfeiture only in cases where a
defendant fails to appear in court.
Enacting this bill could reduce the number of bail bonds
declared forfeit by the Federal courts. Proceeds from forfeited
bail bonds are recorded as revenues, then deposited in the
Crime Victims Fund of the Department of Justice, and later
spent. Thus, CBO expects that the net effect on the Federal
budget from any reduction in revenues and direct spending
resulting from this bill would not be significant.
H.R. 2286 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on State, local, or tribal governments.
The CBO staff contact for this estimate is Daniel Hoople,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2286, will restore the use of bail bonds to their historic use,
namely solely to ensure the appearance of a defendant before a
court as ordered.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2286 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Bail Bond Fairness Act of 2007.''
Sec. 2. Findings and Purposes. Section 2(a) sets forth
certain findings. First, it notes that the sole purpose of bail
in the United States has historically been to ensure the
defendant's physical presence before a court and that the bail
bond would be declared forfeited only when the defendant failed
to appear as ordered. Second, it notes that Federal judges have
merged the purposes of bail with other conditions of release
and that they rely on Federal Rule of Criminal Procedure 46(f)
as authority to do so. Third, it notes that the courts'
reliance on Rule 46(f) has withstood repeated court challenges.
Fourth, it notes that, as a result, the underwriting of bonds
for Federal defendants has become virtually impossible.
Section 2(b) sets forth the purposes of this Act. First,
the Act is intended to restore bail bonds to their historical
origin, that is subjecting bonds to forfeiture only when a
defendant fails to appear before a court as ordered. Reducing
the risk of forfeiture will enable third-party bond writers to
help defendants attain pretrial release, which will give them a
fairer opportunity to assist in their defense. Second, the Act
is intended to preserve the judge's the authority to revoke
bail should the defendant fail to abide by non-appearance
conditions of pretrial release. By revoking bail but not
ordering bond forfeiture, the court retains authority to
enforce all conditions of pretrial release without undue risk
to the third-party.
Sec. 3. Fairness in bail bond forfeiture. Section 3(a)(1)
amends sections 3146(d) and 3148(a) of title 18 of the United
States Code and Federal Rule of Criminal Procedure 46(f)(1) to
prohibit a judicial officer from using bond forfeiture as a
sanction for certain specified conditions related to pretrial
release that are not related to the defendant's appearance in
court.
Agency Views
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 207--RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS
* * * * * * *
Sec. 3146. Penalty for failure to appear
(a) * * *
* * * * * * *
(d) Declaration of Forfeiture.--If a person fails to appear
before a court as required, and the person executed an
appearance bond pursuant to section 3142(b) of this title or is
subject to the release condition set forth in clause (xi) or
(xii) of section 3142(c)(1)(B) of this title, the judicial
officer may, regardless of whether the person has been charged
with an offense under this section, declare any property
designated pursuant to that section to be forfeited to the
United States. 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).
* * * * * * *
Sec. 3148. Sanctions for violation of a release condition
(a) Available Sanctions.--A person who has been released
under section 3142 of this title, and who has violated a
condition of his release, is subject to a revocation of
release, an order of detention, and a prosecution for contempt
of court. 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.
* * * * * * *
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RULE 46 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 46. Release from Custody; Supervising Detention
(a) * * *
* * * * * * *
(f) Bail Forfeiture.
(1) Declaration. The court must declare the bail
forfeited if [a condition of the bond is breached] the
defendant fails to appear physically before the court.
* * * * * * *