[Congressional Record (Bound Edition), Volume 153 (2007), Part 12] [House] [Pages 17146-17148] [From the U.S. 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. (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 [[Page 17147]] 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. 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 [[Page 17148]] 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. 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. ____________________