S 2495
110th CONGRESS
1st Session
S. 2495
To amend title 18, United States Code, and the Federal Rules
of Criminal Procedure with respect to bail bond forfeitures.
IN THE SENATE OF THE UNITED STATES
December 18, 2007
Mr. REID (for Mr. BIDEN (for himself, Mr. SPECTER, Mr. GRAHAM, and
Mr. CARDIN)) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
A BILL
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 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'.
END
