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

October 29, 2003

Mr. GRAHAM of South Carolina introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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

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 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(e) 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.

(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. When this happens, the expense and effort by Federal law enforcement officers to investigate and apprehend defendants is wasted and the overall interests of justice are thwarted.

(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) IN GENERAL-

(1) FAILURE TO APPEAR- Section 3146(d) of title 18, United States Code, is amended by inserting at the end the following: `The judicial officer may not declare forfeited a bail bond for violation of a release condition set forth in clause (i) through (xi), (xiii), or (xiv) of section 3142(c)(1)(B).'.

(2) VIOLATION OF A RELEASE CONDITION- Section 3148(a) of title 18, United States Code, is amended by inserting at the end the following: `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) CRIMINAL PROCEDURE- Rule 46(e)(1) of the Federal Rules of Criminal Procedure is amended by striking `there is a breach of condition of a bond' and inserting `the defendant fails to appear physically before the court'.

END