H. Rept. 108-316 - 108th Congress (2003-2004)
October 15, 2003, As Reported by the Judiciary Committee

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House Report 108-316 - BAIL BOND FAIRNESS ACT OF 2003




[House Report 108-316]
[From the U.S. Government Printing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-316

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



 
                     BAIL BOND FAIRNESS ACT OF 2003

                                _______
                                

October 15, 2003.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2134]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 2134) to amend title 18, United States Code, and the 
Federal Rules of Criminal Procedure with respect to bail bond 
forfeitures, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Performance Goals and Objectives.................................     5
Constitutional Authority Statement...............................     5
Section-by-Section Analysis and Discussion.......................     5
Agency Views.....................................................     6
Changes in Existing Law Made by the Bill, as Reported............    14
Markup Transcript................................................    15

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Bail Bond Fairness Act of 2003''.

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''.

                          Purpose and Summary

    H.R. 2134, the ``Bail Bond Fairness Act of 2003,'' limits 
the circumstances in which bail can be forfeited. Bail set by a 
judge in federal court typically includes conditions that 
require a defendant to make all court appearances and meet 
other conditions, including a requirement that the defendant 
``break no laws.''
    This bill was drafted in response to a 1995 decision by the 
Ninth Circuit Court of Appeals. The decision would allow 
federal judges to forfeit bail bonds in cases in which the 
defendant fails to meet any of the court's bail conditions. The 
bill prohibits forfeiture except when the defendant fails to 
appear in court as ordered. In other words, it makes bail 
forfeiture ``appearance-related'' rather than ``performance-
related.''

                Background and Need for the Legislation

    A 1995 decision of the Ninth Circuit Court of Appeals, U.S. 
v. Vaccaro, 51 F.3d 189 (9th Cir. 1195), held that a judge may 
require forfeiture of the bail bond if the defendant fails to 
meet any of the conditions of his bond. Bail agents contend 
that they have not provided bond service in federal court 
because this decision makes it too risky. They further argue 
that, as a result, the federal courts do not have a meaningful 
bond option because bail agents cannot offer bail.
    The bondsmen argue that this results in further federal 
expense investigating and tracking down fugitives through the 
U.S. Marshals. The bondsmen are frustrated with the Judicial 
Conference (``the Conference'') because it was asked to address 
this issue several years ago, but according to the bondsmen, 
the Conference has not taken any action to change the 
situation.
    The Judicial Conference has indicated that it considered 
this issue recently, and believes this legislation would 
unnecessarily limit the ability of federal judges to set 
appropriate conditions of release. The Conference maintains 
that forfeiture of bond for violation of a condition while on 
release--as opposed to not appearing as ordered is rarely 
ordered by courts. However, judges need the authority to do so 
in appropriate cases. This gives defendants additional 
incentives to comply with the conditions of bond.
    Although there is no evidence that forfeiture in such cases 
is widespread, bondsmen argue that they do not offer bonds in 
the federal system because of the possibility that a court 
might forfeit the bond for a condition violation that the 
bondsmen cannot guarantee as easily as appearance. The Judicial 
Conference contends that this is inaccurate arguing that its 
statistics show that fiscal year 2001, federal pretrial 
services closed 38,050 cases involving criminal defendants who 
had been released into the community. Of those, only 878, or 
2.3 percent, failed to appear in court. In FY 2000, 2.4 percent 
failed to appear; in FY 1999, 2.5 percent failed to appear in 
court.
    The Department of Justice (DOJ) opposes this legislation 
because it contends that H.R. 2134 would eliminate the power of 
federal courts to forfeit bail, including a bail bond, where a 
defendant failed to satisfy a condition of release, other than 
by failing to appear before the court. DOJ argues this would 
seriously limit the ability of federal courts to enforce 
important conditions of pretrial release. As a result, the bill 
would either endanger public safety unnecessarily or increase 
the use of pretrial detention of defendants, or both.

                                Hearings

    No hearings were held on H.R. 2134. A hearing was held on 
this issue at the end on the 107th Congress on October 8, 2002, 
by the Subcommittee on Crime, Terrorism, and Homeland Security.

                        Committee Consideration

    On September 10, 2003, the Committee met in open session 
and ordered favorably reported the bill H.R. 2134 with an 
amendment by voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during the committee consideration of 
H.R. 2134.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports 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. 2134, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                  October 14, 2003.
Hon. F. James Sensenbrenner, 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. 2134, the Bail 
Bond Fairness Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

H.R. 2134--Bail Bond Fairness Act of 2003

    H.R. 2134 would prohibit federal judges from requiring the 
forfeiture of bail bonds for any reason other than failure to 
appear before the court. Under current law, some judges require 
forfeiture when the defendant appears before the court but has 
violated a condition of release. (Such violations could include 
drug use or contacting the victim while released.)
    Under current law, the Department of Justice (DOJ) collects 
about $5 million each year from bail bond forfeitures. Because 
H.R. 2134 would limit the scope of forfeitures, CBO estimates 
that the federal government would collect fewer forfeited bail 
bonds as a result of the legislation. Based on information from 
the Administrative Office of the United States Courts, CBO 
expects the number of forfeitures that would likely be affected 
by this legislation would be small. Collections of such 
forfeitures are deposited into the Crime Victims Fund and spent 
in subsequent years. Therefore, CBO estimates that enacting 
H.R. 2134 would result in no significant net impact on the 
federal budget over the 2004-2013 period.
    H.R. 2134 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Lanette J. 
Walker. This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    H.R. 2134 does not authorize funding. Therefore, clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   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.

               Section-by-Section Analysis and Discussion


Section 1. Short title

    The title of the legislation is the ``Bail Bond Fairness 
Act of 2003''.

Section 2. Findings and purposes

    Subsection 2(a) makes findings regarding bail bonds which 
can be summarized as follows:
    (1) Historically, the sole purpose of bail in the United 
States was to ensure the defendant's appearance.
    (2) Currently, federal judges order conditions of bail that 
include conditions other than appearance.
    (3) Courts have interpreted the Federal Rules of Criminal 
Procedure to allow bonds to be forfeited if a defendant fails 
to comply with any condition of bond.
    (4) Because of this interpretation, the underwriting of 
bonds for Federal defendants has become virtually impossible, 
because the risk for bail agents has greatly increased. In most 
cases, this means requiring full collateral.
    (5) In the absence of a meaningful bail bond option, 
thousands of defendants in the federal system fail to show up 
for court appearances every year. At the Committee's markup, an 
amendment that deleted this fifth finding was offered and 
adopted.
    Subsection 2(b) sets forth the purposes of the bill which 
can be summarized as follows:
    (1) To restore bail bonds to their historical purpose--
ensuring a defendant's appearance.
    (2) To grant judges the authority to declare bail bonds 
forfeited only when the defendant actually fails to appear 
physically before a court as ordered and not when the defendant 
violates another condition of release.

Section 3. Fairness in bail bond forfeiture

    Subsection 3(a) amends 18 U.S.C. Sec. 3146(d) to specify 
that a bail bond cannot be forfeited in any circumstances other 
than where a person has executed ``a bail bond with solvent 
sureties; who will execute an agreement to forfeit in such 
amount as is reasonably necessary to assure appearance of the 
person as required * * *'' under 18 U.S.C. Sec. 3142(c)(1)(B).
    Subsection 3(b) modifies 18 U.S.C. Sec. 3148(a) to clarify 
that forfeiture of a bail bond cannot occur for violations of a 
release condition.
    Subsection3(c) amends Rule 46(f)(1) of Federal Rules of 
Criminal Procedure by only allowing forfeiture of bail for 
failing to appear-not for any other violation of a condition of 
bond.

                              Agency Views

                             Department of Justice.
                             Office of Legislation Affairs,
                                     Washington, DC, June 18, 2003.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department of Justice on H.R. 2134, the ``Bail Bond Fairness 
Act of 2003.'' The Justice Department opposes this bill.
    Under the current federal pretrial services system and the 
bail options available under current law, courts have the means 
to allow defendants to remain in the community, to manage them, 
and to compel them to remain law abiding. Pretrial services 
officers enforce court ordered conditions of release and 
monitor defendants in the community; they ensure public safety 
and manage the risk posed by released defendants. This bill 
would undermine these efforts and pose new risks to the 
community. More specifically, H.R. 2134 would eliminate the 
power of Federal courts to forfeit bail, including a bail bond, 
where a defendant failed to satisfy a condition of release, 
other then by failing to appear before the court. This would 
seriously limit the ability of Federal courts to enforce 
important conditions of pretrial release. As a result, the bill 
would either endanger public safety unnecessarily or increase 
the use of pretrial detention of defendants, or both.
    Section 2 of H.R. 2134 suggests that currently there is no 
meaningful bail bond option in the Federal courts and that 
thousands of defendants in the federal system fail to show up 
for court appearances every year. Both of these statements have 
no basis in fact. As Judge Edward Carnes of the 11th Circuit 
Court of Appeals and Chairman of the Judicial Conference's 
Advisory Committee on the Criminal Rules testified last year 
before the House Subcommittee on Crime, Terrorism, and Homeland 
Security, the federal criminal justice system has a long and 
enviable track record of appropriate pretrial release of 
defendants and of ensuring the appearance in court of these 
released defendants. In fiscal year 2001, federal pretrial 
services closed 38,050 cases involving criminal defendants who 
had been released into the community. Of those, only 878, or 
2.3 percent, failed to appear. In FY 2000, 2.4 percent failed 
to appear; in FY 1999, 2.5 percent failed to appear.
    Section 3142 of title 18 of the United States Code 
addresses the conditional pretrial release of defendants in the 
Federal criminal justice system. If a court determines that 
unsecured release will not reasonably assure a defendant's 
appearance or will endanger the safety of anyone in the 
community, the court is authorized to set conditions for 
release. These conditions can include: the posting of bail or a 
bail bond; restrictions on possession of weapons; use of 
alcohol or drugs; contact with victims or witnesses to the 
crime; or the keeping of a curfew. If these conditions are not 
met, the court can order the defendant detained and also can 
revoke and forfeit any bail or bail bond executed in the case. 
Rule 46 of the Federal Rules of Criminal Procedure sets out the 
procedures relating to the forfeiture of bail or bail bonds and 
to the settling aside or remission of any forfeiture.
    We believe that putting the assets of the defendant or 
those of a friend or relative of the defendant at risk should 
the defendant violate a condition of release significantly 
increase the probability that the defendant will comply with 
such conditions. By eliminating that risk, H.R. 2134 would have 
two possible consequences. Either it would increase the risk of 
harm to the community--by increasing the risk that a released 
defendant would violate one or more conditions of release tied 
to public safety--or it would cause courts to refuse to release 
defendants who might otherwise be candidates for release (out 
of a reluctance to expose the court and innocent members of the 
public to the greater risk that the defendant would violate a 
significant condition of release). For example, good public 
policy dictates that a defendant charged with a crime of 
violence, if not detained, be released pending trial with every 
possible incentive not to possess a weapon and to stay away 
from the victim and witnesses of the charged crime. Under 
current law, a court can order the defendant's bail summarily 
forfeited if the defendant breaches either of these critical 
conditions of release. This is appropriate, because it fosters 
both public safety and appropriate use of pretrial detention. 
If H.R. 2134 were enacted, the court would be powerless to 
forfeit any bail, regardless of the seriousness of the 
defendant's breach of a non-appearance condition of release.
    Thank you for the opportunity to present our views. Please 
do not hesitate to call upon us if we may be of further 
assistance. The Office of Management and Budget has advised us 
that from the perspective of the Administration's views, there 
is no objection to submission of this report.
            Sincerely,
                                      William E. Moschella,
                                        Assistant Attorney General.
                                ------                                

       Committee on Rules of Practice and Procedure
           of the Judicial Conference of the United States,
                                    Washington, DC, March 17, 2003.
Hon. Howard Coble,
Chairman, Subcommittee on Crime, Terrorism and Homeland Security, 
        Committee on the Judiciary, House of Representatives, Cannon 
        House Office Building, Washington, DC.
    Dear Chairman Coble: I am pleased to provide you with some 
additional bail bond statistics of the type requested during my 
testimony on H.R. 2929, the ``Bail Bond Fairness Act of 2001,'' 
before the Subcommittee on Crime, Terrorism, and Homeland 
Security on October 8, 2002. The bill would amend Federal Rule 
of Criminal Procedure 46(e) in order to remove a judge's power 
to forfeit a bail bond as a result of a defendant's violation 
of any release condition other than failing to appear.
    Proponents of the bill contend that the bail bond industry 
is effectively prevented from doing business in federal courts 
because of the added risks associated with guaranteeing that a 
defendant abides by release conditions other than failing to 
appear. The statistics show conclusively, however, that 
corporate surety bonds are used in federal courts and that very 
few of them are forfeited as a result of a defendant violating 
any condition of release other than failing to appear. The 
statistics also show that the number of corporate surety bonds 
posted in federal court has increased consistently since 1995.
    The data in the enclosed Table One is drawn from records 
maintained by the Administrative Office of the United States 
Courts. That table shows the total number of criminal 
defendants released on bond by a federal court during each of 
the ten fiscal years from 1993 through 2002, and it breaks 
those numbers down by type of bond, including recognizance, 
unsecured, cash, collateral, and corporate surety bonds. Mr. 
Richard Verrochi, representing the Professional Bail Agents of 
the United States, testified at the October 8 hearing that 
``since the Vaccarro \1\ opinion, bail agents and corporate 
surety bail bond issuers have essentially been eliminated from 
the federal pretrial system, for obvious excessive risk 
reasons.'' His assertion is contradicted by the facts. Not only 
has the use of corporate surety bonds not decreased, as he 
indicated, but the number of corporate surety bonds posted in 
the federal courts has actually gone up significantly since the 
Vacarro decision was released in 1995. As Table One shows, the 
number of corporate surety bonds posted in federal courts has 
climbed from 812 in fiscal year 1995 to 2,275 in fiscal year 
2002, an increase of 180 percent. That compares with an 
increase of only 33 percent in the total number of defendants 
released on bond over the same period. So, not only has the 
number of corporate surety bonds used in federal court not 
decreased since the year the Vacarro decision was issued, it 
has increased substantially and the rate at which the use of 
corporate surely bonds has increased has outstripped the growth 
in the total number of defendants released on bond.
---------------------------------------------------------------------------
    \1\ United States v. Vacarro, 51 F.3d 189(9th Cir. 1995) (upholding 
a judge's authority to forfeit a bail bond as a result of a defendant's 
violation of a release condition that does not involve failing to 
appear).
---------------------------------------------------------------------------
    The Administrative Office does not maintain statistics on 
the number of corporate surety bonds forfeited as result of a 
violation of a condition of release other than for failure to 
appear. At my request, however, the Administrative Office asked 
district court personnel to manually compile the number from 
the docket records in tend district courts that handle a 
substantial number of criminal cases, representing about a 
quarter of defendants released on bond nationally. The 
resulting statistics from those ten district courts, presented 
in Tables two, Three, and Four, show that there were few 
occasions on which a corporate surely bond was even subject to 
forfeiture because a defendant violated a condition of release 
other than for failing to appear. The number of occasions on 
which surety bond was actually forfeited as a result of a 
defendant violating a condition of release other than failing 
to appear was fewer still. For example, Table Two shows that 
during fiscal year 2002, in those ten districts total of 1,128 
defendants were released on corporate surety bonds, 269 were 
found to have violated conditions of release other than 
appearance, and only 19 corporate surety bonds were forfeited 
for violations of release conditions other than appearance. In 
other words, the percentage of corporate surety bonds forfeited 
in those ten districts during fiscal year 2002 because of 
violation of a condition of release other than appearance is 
only about 2 percent of the total number of corporate surety 
bonds issued during that year in those districts.
    The minuscule number of corporate bonds forfeited as a 
result of a defendant violating a condition of release other 
than for failing to appear belies the contention that corporate 
surety bonds posted in federal courts are subject to 
substantially enhanced risks of forfeiture because of 
conditions other than failure to appear. On the contrary, the 
statistics show that it is relatively rare for a federal court 
to forfeit a corporate surety bond as result of violation of a 
condition of release other than for failing to appear. 
Moreover, the posting of corporate surety bonds in federal 
courts, though relatively modest, is trending upward. I believe 
that these statistics support the comments I made during your 
subcommittee's hearing and the position of the Judicial 
Conference that federal courts should retain their authority to 
forfeit a bail bond as a result of a defendant's violation of a 
condition of release other than failing to appear.
    We continue to encourage you and the subcommittee to oppose 
legislation amending Rule 46(e) and to support the conclusions 
and recommendations expressed in my statement on behalf of the 
Judicial Conference. Rule 436(e) should not be amended.
            Sincerely yours,
                                                 Ed Carnes,
                                                U.S. Circuit Judge.
    Enclosures.
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
         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 italic, 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 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.

           *       *       *       *       *       *       *


                           Markup Transcript

    Chairman Sensenbrenner. Now, pursuant to notice, I call 
upon the bill H.R. 2134, the Bail Bond Fairness Act of 2003 for 
purposes of markup and moves its favorable recommendation to 
the House. Without objection, the bill will be considered as 
read and open for amendment at any point.
    [H.R. 2134 follows:]
    <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
    
    Chairman Sensenbrenner. And the Chair recognizes himself 
for 5 minutes to explain the bill.
    A cornerstone of our Nation's system of criminal justice is 
a presumption of innocence for individuals charged with a 
crime. Consequently, it is important to have a mechanism where 
defendants can be released from custody while awaiting trial. 
Judges have historically been given the discretion to allow a 
defendant to put up money as collateral for the guarantee that 
they appear in court while awaiting their trial. Judges weigh 
many factors when setting this rate, including the nature of 
the charge and whether or not the individual is a risk of 
flight. Because very few individuals have the liquid assets to 
post 100 percent of the cost of bail, the bail bond industry 
allows individuals to contract through a bail bond entity who 
assumes the risk that they will appear on their trial date.
    Unfortunately, this balance has been upset by a 1995 
decision in the Ninth Circuit, U.S. v. Vacarro, which held that 
a judge may require the forfeiture of a bail bond if a 
defendant fails to meet any of the conditions of his or her 
bond. Because of this interpretation by the Ninth Circuit, the 
underwriting of bonds for Federal defendants has become 
virtually impossible. The risk for bail agents has greatly 
increased. Bail bondsmen are not providing bond service in 
Federal court because of this decision. It is simply too risky.
    This unnecessarily leaves the Federal courts without a 
meaningful bond option. H.R. 2134, the Bail Bond Fairness Act 
of 2003, would solve this problem by limiting the circumstances 
for which bail can be forfeited. Bail set by a judge in Federal 
court typically includes provisions to require a defendant to 
make all court appearances and meet other conditions, including 
a requirement that the defendant break no laws. This bill would 
prohibit Federal judges from forfeiting bail bond except in 
cases where the defendant actually fails to appear before a 
court as ordered. It would not permit forfeiture when the 
defendant violates some other condition of release. In other 
words, it makes bail appearance-related rather than 
performance-related.
    The courts would still be able to set conditions of bond, 
but would be required to take some action other than forfeiting 
a bond, such as revoking the bond altogether and returning the 
defendant to jail. This is a common-sense bill, and I urge my 
colleagues to vote in favor of it, and recognize the gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman, for 
scheduling the markup of the Bail Bond Fairness Act of 2003.
    Mr. Chairman, a person is to be presumed innocent until 
proven guilty, and basic fairness indicates that he should be 
free pending trial so that he can be in a position to aid in 
his or her own defense, absent a finding that the person poses 
a risk to society or poses a significant risk of not appearing.
    Now, as you've indicated, the traditional way of binding a 
person or guaranteeing appearance is the surety bond, which 
places--and by placing conditions on bail. Now, the bond, as 
you've indicated, is usually put up by a bail bondsman or 
family members putting up a home. Should the defendant not 
appear, the bond on the bail will be forfeited.
    Under current rules, the court may also not only 
condition--forfeit the bond for failure to appear but also 
forfeit the bond for failure to comply with conditions. Bail 
bondsmen have not been--have not wanted to issue bonds under 
that system for fear that they might get forfeited if the 
bailee fails to meet a condition other than fairness--other 
than failure to appear.
    Now, the court's ability to forfeit a bond for a condition 
like that puts a chilling effect--has a chilling effect on the 
ability of a person to get a bond. And allowing the courts to 
impose the responsibility of family members for defendant's 
activity under threat of losing their home or a bail bondsman 
for forfeiture--for failure to comply with conditions is an 
invitation for problems.
    Since this--since you can have a forfeiture for failure to 
appear, the court will have the defendant before him for other 
sanctions, like revoking the bail or any other conditions they 
might want to appear, fines or anything like that, contempt of 
court, with the person before him. The court doesn't need to 
revoke the bond to make sure that the person is there or to 
make sure the person is behaving.
    Mr. Chairman, in order to make sure that these bonds can 
actually be available to people, I would hope that we would 
support the bill. I urge colleagues to vote in favor of the 
bill.
    I yield----
    Mr. Conyers. Would the gentleman yield?
    Mr. Scott [continuing]. To the gentleman from Michigan.
    Mr. Conyers. I thank the ranking member of the 
subcommittee. I want to commend him and the chairman of the 
committee for their very excellent explanations of why the Bail 
Bond Fairness Act is necessary and would add my comments, ask 
unanimous consent that they be recorded----
    Chairman Sensenbrenner. Without objection.
    [The statement of Mr. Conyers follows:]

                     Statement of John Conyers, Jr.

    I am a strong supporter of the bill before us today, legislation 
aimed at restoring the use of bail bonds to their original purpose.
    Historically, the sole purpose of bail was to ensure a defendant's 
physical presence in court. Today, however, this has changed. The 
issuance of bail bonds has taken on a new purpose. Federal judges now 
use bail to ensure a defendant's appearance in court and to guarantee 
compliance with the collateral conditions of his or her release. This 
change has placed an increased burden on bail bond agents, family 
members, and loved ones requiring them to not only ensure the 
defendant's presence in court but also requiring them to monitor the 
general conduct of defendants.
    This new policy, in many instances, has encouraged judges to order 
the forfeiture of bonds in cases where the defendant actually appears 
in court, as ordered, but fails to comply with some other collateral 
condition of release.
    The expanded use of bail has led to a breakdown in our federal 
criminal justice system. The risk to the bail agent has increased, and 
the industry has been forced to adhere to strict underwriting 
guidelines. As a result, there is no longer a meaningful bail bond 
option. There is also no incentive for people who have already had 
their bail bonds forfeited to appear before court, and so we have 
thousands of defendants failing to make their scheduled court 
appearances. This vastly increases the expenses and effort expended by 
Federal law enforcement officers. It also unfairly penalizes family 
members, in many instances, forcing them to lose their home when 
offered as a form of collateral.
    The bill before us changes all of that; while at the same time, not 
facilitating any increase in the release of dangerous criminals. 
Contrary to the opinion of some, the bill does not change the 
traditional bail process and it does not change the judge's authority 
to grant or refuse bail. Under section 3142(b) of title 18 of the 
United States Code, judges would still have the authority to deny pre-
trial release if he or she determined that releasing a defendant would 
``not reasonably assure the appearance of the person as required or 
would endanger the safety of any other person or the community.''
    In sum, a defendant who has not been convicted of a crime should be 
released to bail unless there is reason, independent of the charge, for 
the court to believe his or her release would jeopardize public safety 
or that the defendant is not likely to make scheduled appearances and 
abide by the conditions of his release. The bill before us would 
achieve this objective.
    I strongly urge my colleagues to support this commonsense proposal.

    Chairman Sensenbrenner. And without objection, all members' 
opening statements will appear in the record at this point.
    The gentleman from Virginia?
    Mr. Scott. Mr. Chairman, I'd yield to the gentleman--if 
you're going to close off statements, I'd like to yield the 
balance of my time to the gentleman from Florida.
    Chairman Sensenbrenner. The gentleman from Florida is 
recognized for a minute and 45 seconds.
    Mr. Wexler. Thank you, Mr. Chairman. Excessive bail shall 
not be required. that's how the Eighth Amendment to the 
Constitution begins. Our Founding Fathers recognized the right 
of bail as so important that they included it in our Bill of 
Rights. Citizens accused of crimes must be able to effectively 
prepare their defense. They're innocent until proven guilty. 
Unless they are a threat to public safety, citizens should have 
access to reasonable bail so that they can go home and prepare 
their cases. There are the tenets of our system of justice.
    However, because of a misguided court decision, bail can be 
put farther out of reach for many defendants. That's why this 
bill, the Bail Bond Fairness Act, is necessary. If judges are 
permitted after the Vaccaro decision to raise the bar and begin 
to mandate good behavior as a condition for keeping bail, then 
agents will be much less likely to provide citizens with bonds. 
And that means that ordinary Americans will effectively be 
denied their constitutional rights.
    A family should not be forced to lose the very roof over 
their head in order to ensure a relative's good behavior. A 
family is staking their home on whether or not the relative 
shows up for court. Court decisions already have--courts 
already have supervision officers to ensure compliance with the 
terms of bail. Under this legislation, judges still retain the 
right to set bail. If someone is dangerous or a flight risk, a 
judge can and should deny bail. If a defendant doesn't show up 
for court, then bail is forfeited. Those are time-honored 
rules.
    We cannot allow the availability of bail to be threatened 
simply because a small number of judges want to move beyond the 
scope of these traditions. That is why I ask the committee to 
pass H.R. 2134.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Are there amendments?
    Mr. Wexler. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 2134, offered by Mr. Wexler 
and Mr. Keller. Page 3, strike line 17 and all that follows 
through line 23.
    Chairman Sensenbrenner. Okay. The gentleman from Florida is 
recognized for 5 minutes.
    [Amendment to H.R. 2134 of Mr. Wexler follows:]

              Amendment to H.R. 2134 Offered by Mr. Wexler

    Page 3, strike line 17 and all that follows through line 23.

    Mr. Wexler. Thank you, Mr. Chairman. I am filing this 
amendment with Mr. Keller. Unfortunately, Mr. Keller is unable 
to be here as well. It simply removes redundant and unnecessary 
language from the bill that I think only simply serve to 
embarrass the Federal judiciary, and we prefer that it be 
removed.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Wexler. Yes.
    Chairman Sensenbrenner. I believe this is a constructive 
amendment and urge the committee to adopt it.
    Mr. Wexler. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Wexler. Yes.
    Chairman Sensenbrenner. The question is on the Keller--or, 
excuse me, the Wexler-Keller amendment. Those in favor will say 
aye? Opposed, no?
    The ayes appear to have it. The ayes have it; the amendment 
offered by the gentleman from Florida is agreed to.
    Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. If there are no further amendments, 
a reporting quorum is present. The question is on the motion to 
report the bill H.R. 2134 favorably as amended.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the bill, 
as amended, is favorably reported.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendments adopted here today. 
Without objection, the chairman is authorized to move to go to 
conference, pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes, 
and all members will be given two days, as provided by House 
rules, in which to submit additional dissenting, supplemental 
or minority views.