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Managing America: Courts

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Week Ending June 29, 2006

H.R.2286 To amend title 18, United States Code, and the Federal Rules of Criminal Procedure with respect to bail bond forfeitures.

The bill report notes that historically, bail bonds provided a guarantee that the defendant would show up in court and the bond could only be forfeited to the US if the defendant did not show. More recently the bonds have been forfeited for other reasons. The report offers as examples the defendant’s use of illegal drugs, failure to maintain a job or travel beyond a certain area, not attending required education programs or violating a curfew. In those cases, the report notes, bonds have been revoked or forfeited and the defendant returned to jail. The expansion of reasons to revoke or forfeit the bond extends beyond the sole reason the court has for detaining a defendant: the risk of flight.

The expansion of reasons to revoke or forfeit beyond the risk of flight compounds the risk that bail bondsmen and families and friends of the defendant will lose assets even if the defendant did not flee and meets all other pretrial release requirements. Bondsmen in particular must then monitor the defendant during pretrial release. The formidable task has caused some bondsmen to stop providing bonds and so the availability of bonds in the Federal system is virtually non-existent. The lack of bonds renders poor and disadvantaged defendants less able to obtain pretrial release regardless of their risk of flight as opposed to wealthy defendants who can post their own bonds.

Friends and families who post their assets as bond may lose those assets even if the defendant showed up in court and was not a danger to witnesses or the community. Ultimately the US prison system takes up the slack at an increased cost to the taxpayer.

The bill amends sections of Title 18 US Code 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.

Sponsor:  Rep. Robert Wexler (D-FL-19^th)

Vote:

Cost to the taxpayers: “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.”

Earmark Certification:   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.

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MORE INFORMATION

(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.

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