[House Report 110-208]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-208

======================================================================



 
                     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.
---------------------------------------------------------------------------
    \1\ 18 U.S.C.A. Sec. 3142(e) (2006).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995).
---------------------------------------------------------------------------
    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.

           *       *       *       *       *       *       *

                              ----------                              


           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.

           *       *       *       *       *       *       *


                                  
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