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H.R. 2134

MARCH 12, 1998

Serial No. 100

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Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

HENRY J. HYDE, Illinois, Chairman
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
BOB BARR, Georgia
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JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director

Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
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BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LINDSEY O. GRAHAM, South Carolina

MARTIN T. MEEHAN, Massachusetts

PAUL J. MCNULTY, Chief Counsel
DAVID YASSKY, Minority Counsel


    March 12, 1998

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    McCollum, Hon. Bill, a Representative in Congress from the State of Florida, and chairman, Subcommittee on Crime


    Davis, Hon. W. Eugene, Judge, U.S. Circuit Court of Appeals, Fifth Circuit, and Chair, Advisory Committee on Criminal Rules, U.S. Judicial Conference

    Hirsch, Milton, Author, Hirsch's Florida Criminal Trial Procedure

    Rumberger, E. Thom, General Counsel, Accredited Surety & Casualty Company, Incorporated


    Davis, Hon. W. Eugene, Judge, U.S. Circuit Court of Appeals, Fifth Circuit, and Chair, Advisory Committee on Criminal Rules, U.S. Judicial Conference: Prepared statement

    Hirsch, Milton, Author, Hirsch's Florida Criminal Trial Procedure: Prepared statement

    Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas: Prepared statement
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    Snow, Debra, President and Chairman of Accredited Surety & Casualty Company, Inc.: Prepared statement



House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to notice, at 9:30 a.m., in Room B-352, Rayburn House Office Building, Hon. Bill McCollum [chairman of the subcommittee] presiding.

    Present: Representatives Bill McCollum, Howard Coble, Steve Chabot, Bob Barr, and Sheila Jackson Lee.

    Staff present: Paul McNulty, Chief Counsel; Nicole Nason, Counsel; Kara Norris, Staff Assistant; David Yassky, Minority Counsel.


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    MR. MCCOLLUM [presiding]. The committee will come to order. I apologize for being a little late this morning. My presence was required at a meeting on the drug issue. So, I apologize for that.

    The hearing this morning is on a very important subject—one which I think we must address. We're going to consider the use of bail in the Federal criminal justice system. Imagine this scenario: A defendant in Federal court is required by a judge to execute a bail bond before he or she can be released. The accused finds a surety who agrees to forfeit such amount as the court deems necessary to reasonably assure the accused person's appearance. Imagine also that the Federal judge then tells the accused that as an additional condition of release he or she must remain drug free. The question before us today is, if the accused returns to court at the specified date and time required, but tests positive for drug use, should the bail bond be forfeited? That is, should the surety lose the entire amount of the bond because the defendant acquired and used drugs during his release?

    Black's Law Dictionary states that the purpose of bail is to ensure the return of the accused to subsequent proceedings. However, some Federal courts have determined that the defendant's return to face the criminal charges may not be enough. These courts have decided that if the defendant violated some separate condition of the release, such as drug use or a travel restriction, the bond is forfeited regardless of the defendant's actual presence in the court room. This is not a minor problem. In many cases, the amount of money being forfeited to the government is in the tens of thousands of dollars or higher. Who is entitled to that money if a defendant violates the condition of release?

    Section 3142 of title XVIII of the United States Code enumerates the many conditions which can be placed on a defendant's release, and I've mentioned a few already. Executing a bail bond is merely one more condition. How then do courts justify the forfeiture of the entire bond when another distinctly separate condition is violated? The answer is that courts use Rule 46(e) of the Federal Rules of Criminal Procedure. This rule states that if there is a breech of condition of a bond, the district court shall declare a forfeiture of the bail.
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    In United States v. Vaccaro, a Federal district court held that the separate order specifying all of the conditions of a defendant's release was incorporated into the appearance bond. In that case, at the bottom of the bail bond were the words, ''see also the order specifying methods and conditions of release attached hereto and made part thereof.'' Thus the court determined that the two documents should be read together and actually constitute one complete order. Then using Rule 46(e) the court determined that a condition had been violated and the entire bond should be forfeited.

    It's important to note that the Vaccaro court also added that Congress could have chosen to amend or alter Rule 46(e), and its failure to make such a change is an indication of the continued viability of the 46(e) forfeiture sanction.

    The bill I introduced, H.R. 2134, the ''Bail Bond Fairness Act'' will ameliorate this unworkable result. Why should we hold a surety accountable for something that it is unable to control, that is the moment by moment conduct of the defendant? My bill would amend Federal Rule of Criminal Procedure 46(e) so that a bond can be forfeited only when a defendant fails to appear as required by the court.

    I strongly believe that a defendant who violates a condition of release, absent a compelling explanation, should be put in jail until the trial is concluded. It seems to me that jail time is a stricter and more appropriate punishment.

    I also believe that the Federal Pretrial Detention Law is one of the hallmarks of the Federal system. Unlike many State systems, when a dangerous criminal is arrested by Federal law enforcement, he's normally not back on the streets the next day.
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    Furthermore, my concern for fairness in this matter does not mean that I'm opposed to the use of conditional release in the Federal system. In fact, I strongly support conditioned release, especially restrictions on the use of illegal drugs. However, I do believe that my legislation will bring the Federal Rules of Criminal Procedure back in line with the Federal Code.

    In addition to the question of fairness, there is the concern that the current rule discourages the use of bail in the Federal system. If this is true, it's unfortunate. Every year thousands of defendants in the Federal system fail to show up for court appearances. As of today, there are nearly seven thousand Federal defendants who are wanted for failure to appear in court. When this happens, the expense and effort by Federal law enforcement officers to investigate and apprehend defendants is wasted. Bail is a greater way of ensuring that these individuals will come forward and be held accountable. I'd certainly like to encourage the use of bail in the Federal system.

    All of our witnesses today have a unique perspective to bring on this issue. And I look forward to hearing from them this morning.

    Mr. Coble, do you have any opening comments you'd like to make?

    Mr. COBLE. No, Mr. Chairman.

    Mr. MCCOLLUM. Mr. Barr?

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    Mr. BARR. No, thank you, Mr. Chairman.

    Mr. MCCOLLUM. In that case, we'll call our first panel of witnesses.

    The United States Judicial Conference has requested to speak second this morning, so I'm pleased to introduce the first panel, which consists of two attorneys with special interest in the continued and effective use of bail.

    I'm very pleased to introduce as our first witness, a good friend of mine, Thom Rumberger. Mr. Rumberger is the general counsel of Accredited Surety and Casualty Company and is speaking on behalf of Ms. Deborah Snow, the president of Accredited Surety and Casualty. Ms. Snow, who was supposed to be our witness this morning, is unable to be with us due to illness. We certainly wish her a speedy recovery, Thom. However, I am certain that Mr. Rumberger will do an excellent job in her place. He is the senior partner in the law firm of Rumberger, Kirk, and Caldwell, which he founded in 1978. Thom is the former county solicitor from Brevard County, Florida, and a former Special Assistant Florida State Attorney. He's also a former circuit judge for the 18th Judicial Circuit, and is currently a fellow in the American College of Trial Lawyers.

    Also with us today is Mr. Milton Hirsch, the author of Hirsch's Florida Criminal Trial Procedure. Mr. Hirsch received his JD from Georgetown University Law Center, and is a former State attorney from Dade County, Florida where he rose to Assistant Chief of Narcotics Prosecution. Since entering private practice, he has litigated a variety of criminal and bail related cases and has published and lectured extensively on the law of bail.

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    Gentleman, your full testimony will be introduced into the record without objection. I hear none. Mr. Rumberger, you may proceed.


    Mr. RUMBERGER. As Chairman McCollum noted, I'm here on behalf of Deborah Snow. Deborah Snow is the president, chief executive officer of Accredited Surety and Casualty, a company which is licensed in 26 States and where bail is written in 15 of those States.

    Her father was the founder of the business and it remains and is a family business. Miss Snow is the operator of it principally because her six brothers and sisters really had no interest in it. And in order to keep the family going, Debbie had to take over. And she does, I might add, a wonderful job.

    Her father had a debilitating stroke in 1993. And following that, Debbie, who had kind of lived the life of good lady had decided to have to get into this work and that's precisely what she's gone and done, I might add, a remarkable job.

    I had been involved with the Snow family and the Accredited Surety and Casualty since 1971, immediately after leaving the circuit bench. I had met Mr. Snow during the course of my judicial career and really took a liking to him. So it was quite a personal thing, as opposed to just a business.

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    Mr. Snow is one of the leaders of and founders of the responsible bail industry in the State of Florida and throughout the country. He had this stroke and has been completely paralyzed and unable to participate. And over the years as that conditioned continued, I became more and more of an advisor to Miss Debbie Snow in very general, general ways.

    But I can tell you this, that at the beginning, I mean, right from the very beginning, Mr. Snow would say and had said to me many times, ''we write bonds for appearance. We do not write bonds for performance.'' The reason that is necessary is, it's an insurance company just like any other. You have to be able to define the risks, in order to understand what the risks are and in order to charge a premium to cover those risks.

    When we have these conditional situations that we'll be speaking about later, there is no way that the agency or the surety can write any bond that would cover all of those. Mr. McCollum gave you the example of the fellow who failed his urinalysis, then leading to the forfeiting of the bond. Basically, gentlemen, that's wrong. And it's wrong because there is no possible way that we as bail people can keep track of, last year, 88,000 bonds were written. There is no way we can take them and make sure they're going to a full time job. We can't make sure they'll pass urinalysis. We can't make sure that they won't be called to or have some activity with witnesses that might be in their case. There's just no possible way.

    Now, I mentioned 88,000 people were written bonds. That means 88,000 people were put on the street with forfeiture available, which meant that they were going to come back. I use that example to note that Mr. McCollum said there were 7,000 Federal prisoners at this time out. Less than 1 percent of our people don't come back for an appearance, less than 1 percent. And 7,000 of the current pretrial release are currently on the street, people who have just simply not showed up, which is—I think is, and should be a significant concern.
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    The bail, really, has gone down hill in the Federal court system since 1970—or 1990 rather, when Vaccaro was announced. The judge in that case was—did make, rather, a finding of failed urinalysis and he ordered an arrest. The arrest was made. The guy came to the jail. And at that point he forfeited the bond.

    We see in that circumstance where, really, the bailsman had nothing, absolutely nothing, to do with it. And there was no reason to punish the corporate security bond. So what we would like to do is suggest very, very strongly, that appearance is the requirement. If, in fact, they appear as they are required to, actually appear—if they don't appear as required to, as required, then obviously you forfeit the bond and the person goes to jail.

    It's not really a difficult concept. You have to, however, understand the necessity of the bailperson not being able in any respect to control the activities of these folks when they're on bond. It's not a probation system; it's not a parole system. It's basically a conservancy and economic system. It does provide great assistance to the courts in our opinion, one that we would like to see branched out in the sense of being able to get to the Federal court.

    Currently, our agents don't write Federal bail bonds, and they don't write them because they don't know what the risk is. They're not going to write performance bonds, they just simply are not going to, because they're businessmen and they can't do that. On an appearance bond you can take special collateral, you can, in some instances have the family stand behind it. There are a lot of motivations over and above the regular things. And that's why we feel it's very, very important that this, an integral part of our system, be permitted to continue or to go into the Federal courts.
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    I understand, for example, that one of the comments by the circuit judge is going to be to the effect that it should be done and handled by rules change. But the fact of the matter is, there have been six or seven different changes mandated by Congress to the rules, and there's nothing, nothing remarkable about that. We find it to be a lot easier way—easier in the sense that you can deal with the problem and get onto it. They have their next meeting, I believe, in April 1998. And in 1999, 2000 some time, there'll be some rule change. But this is a swift way to produce good results for the citizenry and for the bail industry and really for the system. Thank you.

    [The prepared statement of Ms. Deborah Snow follows:]


    Mr. Chairmen:

    Thank you for giving me the opportunity to speak about the importance of H.R. 2134 to the bail bond industry.

    My name is Deborah Snow. I am President and Chairman of the Board of Accredited Surety and Casualty Co., Inc. which was found in 1971 by my father. Accredited specializes in underwriting bail bonds. I have literally grown up in the bail bond business working with my father in his retail bail bond agency, his Managing General Agency and the insurance company. Accredited is still a family owned and operated insurance company domiciled in Florida. It is rate ''A'' by the A. M. Best company.
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    Accredited is licensed in 26 states. It currently underwrites bail in fifteen of those states. In 1996, Accredited wrote approximately 88,000 bail bonds. We are very proud of Accredited and the service its agents provide to the criminal justice system in their respective communities.

    Since by father's debilitating stroke in 1993, I am frequently amazed at how often I draw on the wealth of knowledge he imparted to me over the years. In reviewing the ''Bail Bond Fairness Act of 1997'', I am reminded of one of my father's favorite statements ''we don't write bail bonds, we write appearance bonds.'' The philosophy he espoused, and that Accredited follows today, is that it doesn't matter if a bail agent has enough collateral to pay a bond forfeiture, the agent's obligation to the court and to the public is to produce the defendant.

    You might ask, ''Where did the idea of bail get its start?'' Bail dates back to England during the Middle Ages when the local authorities would release a person accused of a crime to a member of the community for supervision. If the defendant failed to appear, the good citizen would be imprisoned in the criminal's place! Many variations of bail existed throughout the ensuing years eventually evolving into the system we have today in the United States.

    In state court systems, bail bonds are appearance bonds. If a defendant fails to appear the bond is forfeited and the bail bond agent must either produce the defendant or pay the forfeiture to the court. Speaking as the head of an insurance company specializing in bail, I consider this a defined risk. I know that the bail bond executed by and Accredited bail agent should only be forfeited in a state court if the defendant fails to appear. Therefore, the underwriting of a bail bond by an Accredited agent for a defendant in state court is based on the likelihood of a defendant to appear in court. Once the bail agent has assessed that risk, he or she can take whatever additional steps are necessary to assure the defendant appears in court. For example, the family or and indemnitor may be asked to co-sign on the bail bond or place collateral with the bail agent.
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    The problem for the bail industry in Federal court revolves around the Vaccaro decision, Nos. 94-10021, 94-10072, U.S. Court of Appeals, Ninth Circuit. This decision held that ''(1) bail could be forfeited for breach of condition of release and forfeiture was not limited to failure to appear, and (2) defendant and surety were appropriately found jointly and severally liable.''

    Imagine how difficult it is to underwrite a bail bond for a defendant detained in the Federal court system when the risk is not solely appearance? How can a bail agent or the insurance company guarantee the behavior of a defendant released on bond? As an example I am attaching a copy of the Special Conditions of Bond from the U.S. District Court, Southern District of Florida. As you can see, a Federal court can require a defendant released on bail to adhere to a curfew, random urine testing, take an educational program, remain employed full-time, and much more. None of which has anything to do with the most basic aspect of a bail bond which is the appearance of the defendant in court on his or her appointed day. This decision has transformed the traditional appearance bond into a performance bond.

    Forfeitures for breach of conditions have occurred in the Federal court system which have forced the bail agent and the insurance companies underwriting bail to adhere to strict underwriting guidelines which, in most cases, require full collateral. As a result, fewer Federal bonds are written by bail agents. The risk of forfeiture for a breach of conditions even if the defendant appears in court is too great.

    Bail bonds written by agents through insurance companies, also known as corporate sureties, are insurance contracts. The company insures or guarantees that a defendant will appear in court. If the defendant fails to appear, the court is guaranteed the full amount of the bond by virtue of this insurance contract. Think for a moment of other types of insurance, such as auto, homeowners, health and life. How could companies underwrite these policies if the risks were not clearly defined and damages could be assessed for something other than the original intent of the policy?
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    The ''Bail Bond Fairness Act of 1997'' would restore appearance as the sole reason for forfeiture of a bail bond in Federal Court. This would enable bail agents to write more Federal bonds which would assist the Federal court system in supervising defendants. As my father said, ''we write appearance bonds.'' Thank you for your consideration of H.R. 2134.





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    Mr. MCCOLLUM. Thank you, Mr. Rumberger.

    Mr. Hirsch?


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    Mr. HIRSCH. Mr. Chairman, thank you. I appreciate the chance to address the committee. This is a very salutary and healthy piece of legislation that really restores the bail system to its operation at common law. This is not in any way a novel change or a path breaking change, but one that restores the equity and balance that was in the system at common law, prior to Bail Reform Act of 1966 and that is still the law in many of our States.

    The operation of the common law system turned on what was known as the Collateral Conditions Rule, and it drew a very basic, very practical kind of distinction. If someone violated a performance condition of bail, the remedy was to revoke that person's bail and put him in custody. If, however, someone violated the appearance condition of bail, that was what the surety had undertaken to ensure. The surety was the absolute guarantor of the appearance of the criminal defendant. No amount of good faith or best efforts would serve as an excuse, he must pay. That is as it should be. But a defendant who is released on bail and violates a performance condition, should have his bail revoked, should be incarcerated. That is as it should be. And that is how it was at common law and still is in many of our States.

    Now there are, as we tried to illustrate, in some of our written submissions, there are, we suggest, two problems with the system as it presently operates. First of all, there is an inherent inequity, certainly an invitation to an inequity, when the surety, who is, as Mr. Rumberger points out, simply in the business of being an insurer, has to forfeit a substantial bail bond in a Federal case, because of violation of a performance condition. So that if you look at the cases cited in my written submission, in the footnotes 16, 17, 18, 19, it may happen from time to time, as Chairman—Mr. Chairman, you pointed out, that someone is admitted to bail on a very serious, but perhaps nonviolent offense. A bail in the amount of a hundred or two hundred thousand dollars. And the next day, or the next week, that person is charged with a relatively minor municipal infraction, a failure to yield making a left turn or something like that. 18 U.S.C. 3142 requires that performance conditions be made part of every Federal bail bond. This is not optional. And rule 46(e) requires that the violation of any condition result in forfeiture. This is not optional. It is not discretionary with the district court under present law. So that in my example—which is not a hypothetical by any means—that fellow who was released on a $250,000 bail bond, and then charged with the municipal violation of dumping his trash in a no dumping zone, or making an illegal left turn, could find that his surety, his bail bondsman—who could scarcely be expected to guaranty against that kind of ordinance violation—would have to forfeit the entire bond.
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    Apart from that, the present system works a very serious burden on our Federal jails, on our Federal detention centers, which, as this committee is well aware, are much overburdened accommodating the inmate population that they have to deal with right now. It will often times happen that a Federal district judge will allow a particular defendant to be admitted to bail in a certain monetary amount. And that number will be fixed. And then the defendant or his family or his defense counsel will go to bail agents and say, will you please take this individual out on bail. We can pay the premium. We can collateralize the bond, and so on and so forth. And the bail agent will say, you know, I would if it were simply an appearance condition. But because it's a performance condition, because I'm obliged, in effect, to be an absolute guarantor that this individual will never have contact with a witness, leave the jurisdiction even briefly, lose his job, commit another crime or infraction or civil offense of any kind, I can't do it. And as a result, that individual, who has been determined by a district judge to be bailable, will continue to sit in a Federal detention center for days, for weeks, for months, indeed, conceivably right up till the time of trial, resulting in a very serious financial burden to the Federal justice system, and an entirely unnecessary one.

    So certainly, Mr. Chairman, we commend this legislation. It squares the Federal system with a very tried and true common law rule. A rule that is still, I believe, the majority rule, certainly a plurality rule among the States. And one that provides the district judges with a great deal of flexibility to tailor the situation to what's called for, based on the circumstances of each different defendant, to impose no undue or unfair burdens upon the Federal, criminal justice system—which certainly is burdened enough as it is—and simply to restore a general tenure of equity to the bail systems that's so important to the operation of our criminal justice process.
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    [The prepared statement of Mr. Hirsch follows:]



    On July 10, Congressman McCollum of Florida introduced H.R. 2134, the ''Bail Bond Fairness Act of 1997.'' The bill was promptly referred to the House Judiciary Committee where, at the time of this writing, it still reposes. Those of Mr. McCollum's colleagues who choose to review the bill will be struck by its brevity: In its entirety, the bill purports to do no more than delete from Fed.R.Cr.P. 46(e)(1) the words, ''there is a breach of condition of;'' and to insert in their place the words, ''the defendant fails to appear as required by.''(see footnote 1) This seemingly paltry change, however, reflects a long-running jurisprudential conflict over the proper understanding of bail, and the proper operation of the bail bond system.


    Bail—and its now-forgotten cousin, mainprise—is among our most ancient legal practices. Like many such practices, the custom evolved long before its rationale was formally stated. Oliver Wendell Holmes traces bail to the tribal custom of offering and holding hostages.(see footnote 2) So firmly entrenched was the ''hostage'' theory of bail that ''[a]s late as the reign of Edward III, Shard, an English judge, after stating . . . that bail [i.e. sureties] are a prisoner's keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place.''(see footnote 3)
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    Modern jurisprudence offers several rationales for the bail system, which can be grouped for analytical purposes into two paradigms. In the ''presumption of innocence'' model, bail is a right of the accused, a natural corollary of the accused's right to be presumed innocent. ''[T]o refuse or delay to bail any person bailable, is an offense [sic] against the liberty of the subject.''(see footnote 4) According to this model, an arrested citizen's juridical status differs from that of any other citizen only in that he has been arrested, and is therefore bound as an obligation of citizenship to submit himself to the process of the court. But the government is entitled to ask nothing more of him than that he honor this obligation. In all other aspects, it must treat him precisely as it treats all other, unarrested, citizens. Arrest triggers no general, unparticularized power in the government to evaluate the conditions upon which the citizen shall continue to be entitled to participate in society; that is a determination that may be made at trial.

this imprisonment . . . is only for safe custody, and not for punishment; therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only. . . .

Id. At 297.

    Fundamentally different from the ''presumption of innocence'' paradigm is the ''grace'' paradigm. The ''grace'' model gives precedence to the community's entitlement and obligation to protect itself from crime and the prospect of crime. The fact of arrest alerts the body politic to alter the arrested person's juridical status, to place him in a kind of juridical purgatory until a final determination of his place in society can be made at trial. If he is vindicated, he will be restored to his status quo ante ; if not, he moves from purgatory to the Hades of formal condemnation and isolation from society. For society to ignore the fact of arrest—to permit the arrested person to live at liberty like any other citizen—is to be derelict in the discharge of society's duty to protect itself from crime and the threat of crime.(see footnote 5) If it so chooses, the body politic may release the arrested person from custody pending trial, but it does so as an act of grace; and it may burden its act of grace with conditions of its own choosing. In theory, a defendant could be released for so long as he can stand on one leg and yodel, and no longer. Society's principal incentive to grant bail is a pragmatic one: it is expensive and impractical to imprison all arrestees at all times.
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    In early common law times, the ''presumption of innocence'' model was favored. ''By the antient [sic] common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case.''(see footnote 6) Consistent with the ''presumption of innocence'' paradigm, the bail bond contract imposed but one condition: he defendant's timely appearance at trial. Blackstone offers this sample bail bond:

Our early law seldom kept a man in prison before trial if he could find pledges, if he could find persons who could undertake for his production in court. According to Glanvill it is only in cases of homicide that it is usual to keep a man in prison instead of allowing him to find pledges. The law during the next century grew somewhat stricter. The Statute of Westminster I (1275, c. 12) defined the cases in which pledges are not to be allowed—persons taken for the death of a man, or by commandment of the king or of his justices, or for forest offences, or for certain other causes, are not to be replevied.

  Know all men by these presents, that we Charles Long of Burford in the county of Oxford, gentleman, Peter Hamond of Bix in the said county, yeoman, and Edward Thomlinson of Woodstock in the said county, innholder, are held and firmly bound to Christopher Jones, esquire, sheriff of the county of Berks, in four hundred pounds of lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns; for which payment well and truly to be made, we bind ourselves and each of us by himself for the whole and in gross, our and every of our heirs, executors, and administrators, firmly be these presents, sealed with our seals. . . .
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  The condition of this obligation is such, that if the above-bounden Charles Long do appear before the justices of our sovereign lord the king at Westminster, on the morrow of the holy Trinity, to answer William Burton, gentleman, of a plea of debt of two hundred pounds, then this obligation shall be void and of none effect, or else shall be and remain in full force and virtue.(see footnote 7)

    Apart from its archaic language, the foregoing would be a perfectly acceptable and useful form of bail bond in a ''presumption of innocence'' jurisdiction today. It is a simple contract, the mutual obligations being that of the sureties to pay money, and that of the sheriff to release the defendant into the (as Blackstone would have it) ''friendly custody'' of the sureties. There is a single condition subsequent, i.e. the defendant's obligation to appear for trial. If the condition subsequent is met, the sureties are relieved of their obligation; otherwise not. Lawyers and bail bondsmen routinely refer to such a bail bond as an ''appearance bond.'' It commands the defendant's appearance, and nothing more.

    Such a bond is inadequate to the perceived needs of a ''grace'' jurisdiction. As the common law evolved, ''the form of recognizance upon the bail of a defendant [became] 'for his appearance to take his trial and to be of good behavior in the meantime.' ''(see footnote 8) The summary requirement of ''good behavior'' has become more particularized in modern practice. Bail bonds in federal court today typically require not only that the defendant appear as required, but also that he refrain from committing any crimes, that he not be rearrested, that he not leave the geographical jurisdiction of the court, that he maintain employment, that he submit to the supervision of a pretrial services authority, and the like. Consistent with the ''grace'' model, such bond conditions are appropriate. Society is obliged to protect itself; society is not obliged to enlarge the defendant on bail; therefore society will enlarge the defendant on bail, if at all, only on conditions that sufficiently protect society. Lawyers and bail bondsmen denominate as a ''performance bond'' a bail bond that requires the defendant's good behavior.
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    How is it that the condition of good behavior insinuated itself into bail bonds is one of those questions that may be forever hidden in the mists of history. At common law, a form of personal surety differing only slightly from bail was mainprise. The legal fiction underlying bail was that the defendant never left custody. He was, while on bail, still constructively in jail, having done nothing more than, in effect, changing jailers. Bail, then, was applicable only to someone who had been charged with a crime, arrested, and incarcerated. ''[N]o man is bailed but he that is arrested, or is in prison; for he that is not in custody or in prison cannot be delivered out . . . but a man may be mainperned that never was in prison.''(see footnote 9) Mainprise ''is not custody; so that the defendant was absolutely at large, and not even bound by recognizance to appear; for it does not appear, by the forms of entry of mainprise, that the principal enters into any obligation to appear. . . .''(see footnote 10)

    If a defendant admitted to mainprise was not in custody, and was not obliged to appear for trial, what was he obliged to do? There is a suggestion in the sources—and it is no more than a suggestion—that the purpose of the mainprise was to assure the principal's good behavior before he could engage in criminal conduct, not his presence at trial after he had engaged in criminal conduct. Thus Smith might be admitted to mainprise on condition that he be of good behavior where there was concern that Smith was likely to throw stones at the house of his neighbor Jones. Even today, some American jurisdictions have statutes on the books recognizing ''peace bonds,'' although such practice has been largely supplanted by the use of restraining orders and injunctions.

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    If the foregoing historical summary is correct, it explains the derivation of the requirement of good behavior as a condition of bail. Over the course of the years, the distinction between mainprise and bail was blurred, and ultimately mainprise passed out of existence in American practice. The requirement of good behavior is the vestige of mainprise, incorporated in the law of bail.

    The problem is that the foregoing historical summary may be entirely incorrect. Some sources suggest that mainprise evolved as the number of crimes for which bail was unavailable increased. If Jones was arrested for a forest offense, and was denied his writ de homine replegiando by the local authorities, he was without a remedy. The Court of Chancery, seeking to expand its jurisdiction and exploit a source of revenue, provided a remedy in the form of a writ of manucaptionem, of mainprise. If this is the true source of mainprise, then mainprise was available to release offenders who had committed crimes too grievous for bail, not to restrain prospective offenders who might commit some act of misconduct at some point in the future.


    As a matter of tautology, an appearance bond can be breached only by the nonappearance of the defendant. In such a case, the remedy for the breach is the amount of the bond. But a performance bond can be breached in as many ways as there are conditions of bail. When a condition other than timely appearance is breached, what remedy follows?

    Conditions of bail other than timely appearance are sometimes called ''collateral'' conditions. In jurisdictions that make this distinction—the distinction between the appearance condition and all other ''collateral'' conditions—the general rule is that although failure of the defendant to appear will result in forfeiture of the bail, violation of a collateral condition will result in the remand of the defendant to custody, but will not trigger forfeiture of bail.(see footnote 11) The purpose of money bail, after all, is to assure the presence of the accused. A surety becomes a guarantor of the defendant's presence. He has a financial incentive to monitor the defendant's whereabouts. If the accused flees, and fails to appear at the time of trial, the surety is liable without more in the amount of the bond.
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    But ''forfeiture of cash bail for breach of conditions other than an appearance condition transforms monetary bail from a guarantor of appearance into a potentially punitive tool useful in the enforcement of all bail conditions. The purpose of forfeiture, however, is not to punish, but rather to assure that the defendant will appear at court when required.''(see footnote 12) Modern bail bonds typically require a defendant, for example, to commit no crimes, and to maintain employment. To forfeit the money of a surety whose principalis arrested for failure to curb dog,(see footnote 13) or who loses his job because his employer relocates the factory, seems to further no goal of the criminal justice system—unless the provision of financial windfalls to the government is a goal of the criminal justice system. The counterargument, of course, is that forfeiture for violation of a collateral condition is no more incongruous than is forfeiture for failure of appearance. A surety is an absolute guarantor of the appearance of his principal. He does not pledge his best efforts to encourage the accused to appear for trial; he pledges the body of the accused, or a sum certain in its stead.(see footnote 14) Is it more burdensome or less just to require the surety to be the absolute guarantor of his principal's good behavior? Circumstances beyond the surety's control may result in the principal losing his job, or failing to curb his dog; but circumstances beyond the surety's control may result in the principal fleeing the jurisdiction, and no one will suggest that it is unfair to require the surety to pay. The chief distinction, of course, is that the accused's failure to appear is almost always willful, whereas the accused's failure to comply with performance conditions—e.g. maintaining employment—may be inadvertent. But this distinction turns on the intent state of the accused, not of his surety. If it is fair to require a non-negligent surety to pay for the breach willfully committed by his principal, why is it unfair to require a negligent (or, for that matter, non-negligent) surety to pay for the breach inadvertently committed by his principal? In neither case is the focus on the intent state of the surety. In both cases, the surety is absolutely liable for the misconduct of the defendant, without regard to the intent state of the surety or the defendant.
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The State has not cited nor have we found any reported Illinois cases which have allowed a forfeiture for any reason other than a defendant's failure to appear. . . . [A]pplication of the State's interpretation leads to extreme results. For example, the bail condition in the present case prohibited the respondent from violating ''any criminal law of the State of Illinois or any ordinance of any municipality of said State.'' Accepting the State's position, a defendant out on $200,000 bond must have his bond forfeited and a $200,000 judgment entered against him even if he is guilty of only a traffic violation.

    The foregoing argument, though rarely articulated in case or statute law, has carried the day in some American jurisdictions. In federal court, for example, no distinction is drawn between failure to appear and ''collateral'' breaches of a bond.(see footnote 15) Both result in mandatory forfeiture.(see footnote 16) Courts routinely forfeit bail for violations of travel restrictions,(see footnote 17) for subsequent violations of law,(see footnote 18) and for failure to report as required to pretrial services.(see footnote 19) The only limitation on this practice derives from application of fundamental contract law principles. A bail ''bond is a contract, and as with any contract, both parties must abide by its terms.''(see footnote 20) If a bond imposes no performance conditions, the bond is not forfeitable for violation of common performance conditions, even if those conditions are set out in the court order accompanying the bond and directing the defendant's release on the bond.(see footnote 21)

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    In the context of the foregoing analysis, H.R. 2134 purports to work a sweeping, and salutary, change in bail practices in the courts of the United States. The effect of the bill, if passed, will be to restore the ''collateral conditions'' rule: A defendant who fails to report to pretrial services, or who fails a urine screening, or who temporarily leaves the jurisdiction without court permission, will be subject to more stringent conditions—even revocation—of bail. He may be remanded to custody. But if he is not remanded to custody, and if he shows up for trial on time, his bail will not be forfeited. Thus the increased ''fairness'' for which the ''Bail Bond Fairness Act of 1997'' is angling is not fairness to the defendant or to the prosecution, but fairness to the surety. The surety who timely produces his principal for trial has fulfilled his obligation to the courts and is entitled to discharge of his obligation under the bond. He need not be concerned that, while enlarged on bail, the defendant ran a traffic light, went across a jurisdictional line for the weekend, quit his job. The consequences of these acts of misconduct will remain where they belong—with the defendant.

    The restoration of the ''collateral conditions'' rule will likely result in an increase in the number of defendants who, having been admitted to bail, are actually released. Sureties—particularly corporate sureties—may be willing to accept the risk of a given defendant's nonappearance in circumstances in which they would not accept the risk of the same defendant's violation of performance conditions. Even under the ''grace'' paradigm of bail, it is in society's interest to see that arrestees who have been admitted to bail are released from custody on the terms to which they have been admitted. If nothing else, the considerable costs associated with the housing and maintenance of the pretrial detainee population will be reduced.

    Mr. MCCOLLUM. Thank you very much, Mr. Hirsch.
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    Mr. HIRSCH. Thank you.

    Mr. MCCOLLUM. I'll yield myself 5 minutes for questions, then follow with any of the other members.

    I am curious if there are any appearance bonds in the Federal system today. How frequently do they occur? Are there any at all?

    Mr. HIRSCH. No, sir; there are not. There are not. As a matter of law, there can not be. 18 U.S.C. 3142 and I believe subpart (c)—I'm bad at this kind of thing—I think it's subpart (c)——

    Mr. RUMBERGER. Sounds pretty good.

    Mr. HIRSCH.—mandates that every bail bond in the Federal system must include at least the break-no-laws condition. And the Administrative Office propounds a standard bail bond that's used, as far as I know, in every U.S. district court. It provides certain preprinted performance conditions, others in a sort of a check box format, the judge can add to the list, but not detract from it. So, there is truly no such thing as a traditional appearance bond in Federal court.

    Mr. MCCOLLUM. And the net result of that is that there are fewer and fewer bonded people who get out at all.

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    Mr. HIRSCH. Even among those who are bailable.

    Mr. MCCOLLUM. Right. That's what I mean.

    Mr. HIRSCH. Even among those whom the district judge determines to be an acceptable risk and not a danger to the community.

    Mr. MCCOLLUM. Right. Can either of you tell me what drawbacks there are to the appearance bond? Are there problems with people who exaggerate their assets? Are there other drawbacks to an appearance bond? Mr. Rumberger.

    Mr. RUMBERGER. I think our agents, for the most part, become pretty knowledgeable, and have the ability to determine that, and determine both—well, the collateral essentially. And so, no; we don't have any difficulty with that, any appreciable difficulty.

    Mr. MCCOLLUM. Is there an advantage to the wealthy? If we go that route, can we be accused of advantaging the wealthy because of the appearance bond?

    Mr. RUMBERGER. Well, I don't know the advantage to the economically secure, but there's certainly no disadvantage to those who can't bond out in the sense of our bonds. We have the pretrial release programs, which do, in fact, assist those folks, from time to time. And we just think that basically it is a—as Mr. Hirsch said—it's a situation which has been in existence for a long, long time. It's worked very, very well. And we would think that it should be an integral part, not the only part, but an integral part of the judicial administration of this country.
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    Mr. HIRSCH. Mr. Chairman, the flip side of that is performance conditions burden the indigent equally with the wealthy. Someone who is not well to do, but is released on either to pretrial services or on a personal surety—family members become guarantors, that sort of thing—if that individual, who is perhaps more likely to violate the condition of don't lose your employment, those sorts of conditions, that individual is every bit as burdened as is the wealthier defendant.

    Mr. MCCOLLUM. Let's assume for a minute that this bill, H.R. 2134, is adopted and that we amend rule 46(e) as it proposes. We all agree, I assume, that defendants who then violate their nonappearance should be punished in some way. How do we punish them? How do we deal with them?

    Mr. HIRSCH. That is a matter properly consigned to the discretion of the United States district judge. Certainly, there is a presumption in favor of revocation, that that defendant who violates a collateral condition probably ought to be remanded to custody. That's the way it's handled in most States that follow this rule, and it then becomes the burden of the defendant to show exceptional circumstances that would justify his re-release on new but heightened condition.

    Mr. RUMBERGER. Vaccaro, Mr. Chairman, had to do precisely with that, which is they brought him back in because of the failure to pass urinalysis, at that point, forfeited the bond. It would be our suggestion that forfeiting the bond had nothing to do with the failed urinalysis. And it just—I mean, obviously, it just gets down to a question of fairness.
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    Mr. MCCOLLUM. Let me ask this one last question, then I'll let Mr. Barr question you. As you're aware right now, the U.S. Marshall Service is charged with the apprehension of fugitives in the Federal system. If we have an increase use of bail that results, as I presume it would, in more bail agents, how would these private agents avoid interference with the U.S. Marshall's fugitive tracking? How do you see situations resulting where a private bail agent fails to contact a U.S. Marshall, but attempts to apprehend a fugitive himself? In other words, how is this going to interplay with the U.S. Marshall service?

    Mr. RUMBERGER. Our bail agents are familiar with the families generally. Our bail agents are familiar with the people involved, the defendants on bond. Our agents, in fact, inform the U.S. Marshals many, many, many times concerning their whereabouts, or at least they certainly do in the State, telling where the defendant may be, the most likely place to find him. So, all in all, it's an add to the situation as opposed to a detract.

    As I noted, there's a very, very, small percentage, very small percentage of people who don't appear when they're out on cash or corporate security bond. And we can not help but think that would reduce the engagement of the U.S. Marshall in collecting these folks.

    Mr. MCCOLLUM. Mr. Hirsch, do you have any comment on that?

    Mr. HIRSCH. I've heard marshals say informally—I don't know that they'd say it for the record—that the bail bondsman is a marshall's best friend. The bail bondsman, bail agents are heavily regulated by virtually every State, all 47 States that have corporate surety bail. And they are obliged to conform very strictly to a whole host of statutes and regulations of all kinds that include the way that they interact with the marshall service. I think they certainly relieve the burden that's on the marshall service because, frankly, the marshall service can not be expected to recover all the fugitives that they would be obliged to recover were it not for the bail agent.
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    Mr. MCCOLLUM. Mr. Barr, you're recognized. Mr. Chabot, you just walked in, do you mind if I go to Mr. Barr first?

    Mr. CHABOT. No, not at all.

    Mr. MCCOLLUM. Mr. Barr, you're recognized for 5 minutes.

    Mr. BARR. Thank you, Mr. Chairman. I appreciate the gentlemen from Ohio letting me go first.

    Judge Davis has submitted, along with his statement, some of the relevant documents, including a sample order setting conditions of release form, which states in pertinent part, ''It is ordered that the release of the defendant is subject to the following conditions: one, the defendant shall not commit any offense in violation of Federal, State, or local law while on release in this case.'' And then there is attached to that an additional page wherein the court might set additional conditions of release. And at that beginning of that document, which I know you all are very familiar with, it states, quote, ''upon finding that release by one of the above methods will not by itself reasonably assure the appearance of the defendant and the safety of other persons in the community, it is further ordered that the release of the defendant is subject to the conditions marked below.'' And then on the third page of this set of documents it states, quote, ''a violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention and a prosecution for contempt of court, and could result in a term of imprisonment, a fine or both.''

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    It's my view that these documents taken together properly set forth not only the reasoning behind requiring conditions of release, and I think the most important language is, ''upon finding that release by one of the above methods will not by itself reasonably assure the appearance of the defendant, then there are additional conditions.'' It's my impression that in Federal courts, certainly, the additional conditions are not conditions that somebody just makes up because they're mad at the person to be released or they want to be nasty to them or punishment, it is all predicated on the very same notion that the bail—that the appearance bond is predicated on, conditions to assure the appearance of. And I'm not sure that tampering with this is really necessary.

    It's my impression—and this is really what I'd appreciate you all's comments on—it's really not my impression that this is a serious problem in Federal court. I know there are some anecdotal—in some of the material there are some anecdotal references to people having a bail bond revoked because, you know, they failed to curb their dog or what not. I'm fairly certain those sorts of things aren't in Federal court, at least I would hope not. But is there a serious problem in Federal court whereby bonds have been issued, conditions have been required, that, one, people don't know about, when they enter into this contractual relationship with their eyes open? And have there been a large number of instances where there have been abuses, in other words, where the conditions of the bond clearly have not been predicated on assuring the—reasonably assuring the appearance of the person in court, and where judges seem to have abused their power by hauling somebody back in and, you know, revoking their bond, revoking their bail for, you know, basically very minor, inconsequential or silly offenses?

    Mr. HIRSCH. Congressman, let me draw a distinction for you. Everyone agrees, everyone agrees that those kinds of conditions that you've cited to us ought to be used and ought to be imposed. They're there for a reason. They're there for good reason. Where the shoe pinches is, what is the remedy when one of those conditions is violated? I think everyone agrees, I hope everyone agrees that where someone violates a condition—a performance condition of pretrial release, that person probably ought to be taken back into custody or at least ought to show cause why he shouldn't be taken into custody.
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    Mr. BARR. But isn't—and I agree. But isn't the language on the third page that I cited really the important language, that—in terms of the remedy. It says, ''a violation of any of the foregoing conditions of release, may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention and a prosecution for contempt, etc.'' It doesn't state in there that you're going to lose the bond, that the bond is forfeited, just that a revocation of release. So, doesn't it lay out, at least for Federal court purposes, which is what we're talking about here, the proper remedy.

    Mr. HIRSCH. Rule 46(e) mandates the revocation—the, not only revocation, forfeiture of the bail.

    Mr. BARR. Is this document then in violation then of the terms of the rule?

    Mr. HIRSCH. No. I think it's not. I think that document is intended to serve notice on the criminal defendant of the whole panoply of possible sanctions that he may expose himself to, the better to remind him——

    Mr. BARR. But it doesn't say that the bail will be forfeited.

    Mr. RUMBERGER. 46(e) does, Congressman.

    Mr. BARR. Okay. So, I mean, do we have a problem then between these court documents? Somebody raised the argument that these were violative or contradicted by the rule and therefore these aren't——
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    Mr. HIRSCH. I don't think they're contradicted. Certainly, the bail agents and the surety community is aware of the effect of Rule 46. We're not complaining of a lack of notice. We know what the problem is.

    As it works in Federal court, from my own experience, and I do this all the time, typically where a—pretrial services, or whoever it is, goes before the court ex parte, there's a finding by the court that the defendant has done whatever he has done, and the court will automatically enter an order forfeiting the bond. The bail agent may later seek a remission in whole or in part. That is a plea ad mis recordum; it's a request for the exercise of the court's equity. But the law under 46(e) as presently constituted, is mandatory and consigns no discretion at all to the district judge. He or she must forfeit the bail apart from whatever he or she does to the defendant by way of sanctions. That we suggest is kind of a mismatch between the problem and the solution.

    Mr. BARR. Mr. Chairman, could I ask unanimous consent just to ask one more question?

    Mr. MCCOLLUM. Certainly.

    Mr. BARR. Would the remedy then be to—and I think the judge may suggest this in his testimony—be to go back and look at the rule, perhaps not make a blanket amendment to it, but clarify the point that you're making. In other words, not completely take away the authority, perhaps not make it mandatory, but clarify exactly what these other conditions are to be and are to be used for.
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    Mr. RUMBERGER. Well, I think everybody knows, generally, what the conditions are to be. I mean, there are outlines. I have one from the Southern District in Florida and it lists all the same things that you talked about, I think maybe plus or minus a couple.

    The fact of the matter is that that Mr. Barr is not where we are. Where we are is, should bail play a role in the Federal judicial system, because currently it's not playing such a role, and it's not playing such a role because insurance companies, sureties, can not ensure about all these other things. So there are not going to be any bond writing. You asked were there a lot of cases. No there not, because we can't write bonds ensuring that the guy will pass a urinalysis, or keep on the job, or not hit his wife, or do any one of a myriad of things. And until that time——

    Mr. BARR. But you have some background that you could get to myself—and maybe the chairman would appreciate this—illustrating if this problem has become paramount, has become more prevalent in recent years, the number of bonds being written has dropped off precipitously.

    Mr. RUMBERGER. The prevalence is not whether people have been required to submit forfeiture. The problem is that we can't write bonds.

    Mr. BARR. That's what I'm saying. Is there some statistical, some evidence that would show that?

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    Mr. RUMBERGER. If there is, I'll sure give it to the chairman.

    Mr. BARR. And again, I'm not prejudging this at all. I think it's—I'd like to commend the chairman. It's a very important issue, one that doesn't receive a lot of attention and perhaps ought to. And I appreciate very much this discussion in the hearing. Thank you, Mr. Chairman.

    Mr. MCCOLLUM. Thank you.

    Mr. Chabot, you're recognized for 5 minutes.

    Mr. CHABOT. Thank you, Mr. Chairman. First of all, just a couple questions. I don't think I'll take up the full 5 minutes. Once a bail bond is executed, does the surety or the bail bondsman have any extensive contact with the defendant? And specifically, is there any way for the surety to have actual knowledge if the defendant leaves the jurisdiction, or uses drugs, or makes phone calls to a victim, or whatever? In what ways do you monitor the defendant in an effort to protect your interest?

    Mr. RUMBERGER. Well, No. 1, I told you that we don't do much bond writing in the Federal courts, so it doesn't become a big problem. No, there's absolutely no way. Our company wrote 88,000 bonds last year. We do not have a full staff of probation officials and officers and folks that can check on the domicile and check on the marriage and check on the job. What we do is require some contact with them, in order so that we know where they are for the purpose of appearance.

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    And it's that appearance which, at least in our mind, is the most important ingredient of corporate sureties. It is not all these other things because it simply can't be done. We don't have the staff, the economics are not there. Nothing is there to do that. Certainly if we found somebody who came to the shop and he was drugged, they report it. I mean, that's just part of the business. If somehow one learned that they had lost their job, that's reported. Reported generally, not to altruistically, that when those things start happening, the next possible movement is away, failure to appear. And so we try to keep aware, to that extent, of what's going on in one's life. But again, for the part of appearance, not for performance.

    Mr. CHABOT. Do you know approximately what percent of defendant's don't show up for their court date and how much is forfeited?

    Mr. RUMBERGER. The only number I have is 7,000 are currently out on the Federal—fugitives on Federal system. And we as bail folks have less than 1 percent. So if you took 1 percent of 88,000, that'd be 880 or whatever it is. But generally, we bring most of the folks back to face justice.

    Mr. CHABOT. And I assume that you don't feel that this would reduce the incentive for defendants to adhere to their performance requirements.

    Mr. RUMBERGER. Generally, it would enhance that, because more often than not, mom, pop, brother, sister, somebody has to sign that for security. And there's a lot of, for lack of a better term, peer pressure; meaning, from the family, ''get your butt down there and get before that court, or you're going to cost me my house.''

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    So, no, I would say the emphasis is just the opposite. The emphasis is making people perform and making them show up and making them be responsible in that sense. It also helps when we get back to the drugs and the jobs. Those people are on the line to some extent many of them. And so it's to their benefit, their economic benefit, to keep old junior straight over here, and make sure that he tows the line.

    Mr. HIRSCH. Congressman, remember, too, that all the traditional panoply of remedies, throwing the guy back in jail, for example, is still going to be available. That's the sanction that we believe should be imposed. The only question, the only change in remedy raised by this bill is to restore the old common-law rule and say that the surety isn't going to forfeit the entire amount of the bond simply because a performance condition was violated, something which the surety really couldn't undertake to guaranty in any event.

    Mr. CHABOT. I thank you. I yield back the rest of my time.

    Mr. MCCOLLUM. Thank you very much. I think the questioning has brought out the fact that there's very little understanding of this situation among Members of Congress. Until this matter was brought to my attention recently, I didn't realize that the Federal system didn't have a comparable situation to the States with regard to surety bonds. I think the whole language varies there. Most of us don't practice that kind of law and so we haven't paid attention to it.

    Let me ask one question for clarity. In the 47 States where surety bonds are written, are any of those performance States which are comparable to the Federal system, or do they write only appearance bonds? Do we know?
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    Mr. RUMBERGER. I would say not to my knowledge. Perhaps Mr. Hirsch has some——

    Mr. HIRSCH. I can't positively guaranty you. I know the norm is appearance bond. I can't tell you for a fact, Mr. Chairman, that there aren't a couple of States out there that might have performance—forfeiture rules. But the norm is appearance bonds and the collateral conditions, the common law rule is the wide practice.

    Mr. MCCOLLUM. The other point related to all of this is, whether we make these changes or not, bail as it now exists could still be set by a judge desiring to do so and where there isn't a surety bond. It's just that you don't have the bail bondsman involved in the situation, and there's not that factor of further encouraging appearance. Is that really what we're talking about?

    Mr. RUMBERGER. Absolutely.

    Mr. HIRSCH. Section 3142 provides sort of a laundry list of possible approaches to pretrial release, starting from the most lenient to the most restrictive, ending in pretrial detention, and indicating that the court should always favor the most lenient and most reasonable terms of pretrial release. So we're not—nothing that we're talking about would in any way limit options that now exist under Federal law. In fact, it would enhance the discretion of the U.S. district judge.

    Mr. MCCOLLUM. So the U.S. district judge could just choose to use the surety bond, which today he can use, but nobody's going to write it.
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    Mr. RUMBERGER. Right. That's correct.

    Mr. MCCOLLUM. So there's no bail bondsmen out there in the Federal system as a practical matter. So the bill simply adds a new option, that is all we're really saying here. Isn't that right?

    Mr. HIRSCH. This gives life to an old one.

    Mr. MCCOLLUM. It gives life to one that used to be around, but it hasn't been around since 1989 when Vaccaro was decided.

    Mr. HIRSCH. I think, really, since the 1966 statute, since the Bail Reform Act of 1966.

    Mr. MCCOLLUM. Now, one last question. In his testimony, the judge points out that the bench and the advisory committee in particular has received no complaints or comments from the bar or the bench or the public on the rule. And the committee has not been otherwise aware of problems. Why has this not been brought to the attention of the advisory committee on the rules before now? Or has it been? In other words, the judges may rightfully be saying, ''Congressmen, we want the chance to correct this, but we didn't know there was a problem.''

    Mr. RUMBERGER. You said that's my question.

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    Mr. MCCOLLUM. That's fair enough.

    Mr. RUMBERGER. Fair enough. I would suggest, Chairman, that the reason it has not been brought to anybody's attention, is that over the years, from 1966, as Mr. Hirsch mentioned, particularly following 1989 and the Vaccaro decision and other decisions, that the bail folks simply quit doing it. They thought, perhaps felt, that they had no remedy. There was no where to go. It was a condition of the high and august Federal court; and that was it. And at a point in time, I think some of us got around and started to thinking that perhaps this could be done, that bail is an instrumental part of the whole judicial system. And it should be there.

    So I, yes, I have no doubt that there weren't any great comments made. But we're here today making complaints. And we here hopefully attempting to persuade you folks that this is a valid, a good reason. It serves a public purpose and we're very pleased to appear.

    Mr. MCCOLLUM. Could this be remedied by rule change by the court?

    Mr. RUMBERGER. That's a law. He takes the law.

    Mr. MCCOLLUM. Mr. Hirsch?

    Mr. HIRSCH. It could, Mr. Chairman.

    Mr. MCCOLLUM. The reason I ask that question is the advisory committee has a meeting here in about a month, according to the testimony here. I don't know what this committee will do, but we certainly want to effectuate changes that are helpful to the system. And whichever route we take, whether it's legislative or judicial, as long as the remedy is achieved I think that the purpose is achieved. It may or may not be that we need this statute, but we don't know that yet. It sounds like that's what it boils down to.
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    Mr. Barr, I've taken more questions. Would you like to follow up with any? I don't want to. We only have you and I here right now. Oh, I see that Miss Jackson Lee is here. I'm sorry. I didn't see you walk in. I was so intensely questioning. You are recognized for 5 minutes.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me just simply—because I did come in from matters on the floor—to just simply say that I appreciate the witnesses being here. I don't grasp fully the magnitude of the issue, but in any event, I imagine it's important to some people. And with that in mind, I'll continue to listen. I'm not sure whether it's our role, Mr. Chairman, to change bail bond standards across the Nation, so I'm trying to understand, you know, the focus of the legislation. I understand yours at least deals with just limiting the failure to appear.

    Mr. MCCOLLUM. If I might explain it, Miss Jackson Lee—since you did come in a little late and we haven't talked about this—right now as the Federal system exists, there is no bail bond, no surety, no private bailsmen, like there are in 47 States. Apparently, back years ago when the Federal rules and then interpretations of them were adopted, there was a requirement of performance rather than appearance, which is not true in most of the States. Performance means that if you've got somebody out there who doesn't pass the urinalysis test or something while on release, then the bail bond is forfeited. And apparently the courts have said, ''That's it.'' Therefore, the people who write these bonds—the insurance companies—won't write them. So, there's no Federal bail bond as a practical matter in existence today. We have the U.S. Marshals and bail and that sort of thing, but—as opposed to the States—the bail bondsmen aren't in the Federal business. What I've proposed in this bill, and what we're here to discuss today, is whether something can be done—either legislatively or perhaps through court rule change—to get the bail bondsman back into the business of Federal bail bond to help get people to appear before courts. That's really what the issue is about—adding to the options.
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    I don't want to argue my case too much because that's what the witness is supposed to do, but I'm just explaining the bill as I did in my opening statement.

    Ms. JACKSON LEE. And the issue that I'd raise back to you, and then I do have a final question for these gentlemen—are you making the distinction as to whether or not it would be preferable to do it legislatively or allow the Judicial Conference to handle it?

    Mr. MCCOLLUM. That was the question I had just asked them as you walked in. You're free to ask them again, Sheila.

    Ms. JACKSON LEE. I'd appreciate it.

    Mr. MCCOLLUM. Why don't you let them respond to you on that?

    Ms. JACKSON LEE. Would you answer that for me—legislation versus the Judicial Conference responding to this concern?

    Mr. RUMBERGER. Basically, this is a simple way to do it, requires just a line or two. No. 2, submitting it to the Judicial—who are perfectly capable of doing it because, as we know, and to our certain knowledge, there have been six or seven different times since 1993 where these rules have been amended by legislation. So it's not something off in space.

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    The ease of doing it? The applicability and appropriateness of doing it? In the absence of a long discussion with a herd of circuit judges and district judges, discussing the pros and cons of bail—this has nothing to do with bail as bail; it has to do whether or not the bail bondsman is guaranteeing appearance or guaranteeing all these other conditions, which he simply can't do. He can't tell about a job; he can't tell about any of these other things, but he can darned well make sure that the guy shows up.

    There are 7,000 Federal fugitives now. In our circumstance, my company, we have less than 1 percent of the folks who are out and run away and doing their——

    Ms. JACKSON LEE. So, in essence, you don't have the component in your business that can babysit?

    Mr. RUMBERGER. No.

    Ms. JACKSON LEE. So when there are other conditions, albeit you are responsible for them, how can you monitor it? If you have one succinct issue or compliance, which is failure to appear, you would feel more comfortable, be able to do it?

    Mr. RUMBERGER. Well, we know what the risk is.

    Ms. JACKSON LEE. Obviously, you appear or don't appear.

    Mr. RUMBERGER. Sure. Absolutely.

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    Ms. JACKSON LEE. Do you see the conditionalities which of course have merit——

    Mr. RUMBERGER. Absolutely.

    Ms. JACKSON LEE.—for whatever these individuals are being required to do, being placed somewhere else? I know you're not in the court system, but do you have sort of the sense or a feel that if this legislation passed, there could be another structure that monitors the conditionalities?

    Mr. RUMBERGER. And there is another structure. It's called arrest; put in jail, if you violate the condition. I mean, that is the ultimate punishment, where they can bring them back, where they can have more restrictions, where they can do any one of a number of things, if the violation is demonstrated to the court. That becomes really a relatively—and they have that right now.

    I've got to just reiterate for a quick second, there is no way that an insurer can figure out his risk, when he has a list of nine conditional potential forfeitures, when he has no way of controlling it. We control to the very best of our ability the appearance. They call; they want Defendant X; Defendant X comes before them. It's as simple as that.

    But we get into all these other things, and we simply can't guarantee it.

    Ms. JACKSON LEE. I appreciate it. One final point, just on the monitoring aspect of it——
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    Mr. HIRSCH. Congresswoman, may I?

    Ms. JACKSON LEE. Yes, you may.

    Mr. HIRSCH. To respond to the procedural question you asked, because I think it's of such importance, what this legislation does is restore the situation to what it was prior to earlier legislation. In 1966, Congress enacted the then Bail Reform Act, which for the first time created the mandatory forfeiture conditions. That was not judicially enacted; that was legislatively enacted.

    What this legislation would do would simply undo that and restore things to what they were before and what they were in common law and what they are in most of the States. So in that sense, it's an act of deference to judicial lawmaking rather than the usurpation of judicial lawmaking.

    Ms. JACKSON LEE. And I appreciate that enhancement. The other aspects of conditionalities, do you feel that the U.S. Marshals would be adequate to look at those other aspects versus the failure to appear; that they should know whether there is compliance with a job situation or other things of that sort?

    Mr. RUMBERGER. The Marshals, all U.S. law enforcement officers, even State law enforcement officers, for that matter, can report those violations, and the person is then brought back.

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    Ms. JACKSON LEE. I thank the gentlemen. I thank the chairman.

    And, Mr. Chairman, I'd like to submit in the record my statement, with unanimous consent.

    Mr. MCCOLLUM. Without objection, it is so ordered.

    [The prepared statement of Ms. Jackson Lee follows:]


     Bail bonds are often written by agents through insurance companies because the cost of those bonds can be prohibitively expensive for a defendant. Those bonds then are effectively insurance contracts. The company insures or guarantees that the defendant will appear in court. If the defendant fails to appear, the court is guaranteed the full amount of the bond by virtue of this contract.

     The ''Bail Bond Fairness Act'' would amend the Federal Rules of Criminal Procedure by striking the phrase ''there is a breach of condition of'' and inserting ''the defendant fails to appear as required.'' In so doing, the legislation provides that a court could declare the forfeiture of a bail only if the defendant failed to appear in court as required. Current law, provides that forfeiture may be declared if the defendant breaches any condition of that bail even if the defendant does appear as required.

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     H.R. acts to resolve the conflict that currently exists between the Federal Rules of Criminal Procedure and the United States Code with respect to bail bond forfeiture. The United States Code provides that ''a defendant . . . may be released on personal recognizance or upon execution of an unsecured appearance bond'' (Title 18, Sec. 3142). In contrast, the Federal Rules of Criminal Procedure states that ''if there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail'' (Rule 46(e)).

     While the United States Code provides that the Federal Rules of Criminal Procedure shall not ''abridge, enlarge or modify and substantive right'' (Title 28), they do have the effect of superseding statutory language. On occasion in the past, when the Rules and the Code have been in conflict, Congress has amended the Rules through legislation.

     Federal law gives a judge wide discretion in limiting a defendant's release. For example, the judge can mandate that an accused avoid all contact with the alleged victim, refrain from travel outside the jurisdiction, enroll in educational or treatment programs, adhere to a curfew, remain employed, submit to periodic drug testing, or refrain from the use of drugs and alcohol.

     H.R. 2134 seeks to resolve the problem that arises for a bail agent when forfeiture of a bail bond is based on the breach of a condition of bail. Forfeiture in those circumstances is beyond the original intent of the insurance contract executed by the bail agent. Further, it is virtually impossible for the bail agent to guarantee the behavior of a defendant released.

    Mr. MCCOLLUM. Mr. Barr, do you have follow-up questions?
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    Mr. BARR. No, thank you, Mr. Chairman.

    Mr. MCCOLLUM. To reiterate, while the United States Judicial Conference may be able to alter the rule, both of you still would prefer a statute because (a) you think it would occur more quickly; and (b) you see that there is an historical congressional reason for the existence of the problem today. Is that basically what you're saying?

    Mr. RUMBERGER. Absolutely.

    Mr. HIRSCH. Exactly right, Mr. Chairman.

    Mr. RUMBERGER. The 1996 law is congressional.

    Mr. MCCOLLUM. All right. Thank you very much. I appreciate both of you appearing.

    Mr. RUMBERGER. Thank you, Mr. Chairman.

    Mr. HIRSCH. Thank you.

    Mr. MCCOLLUM. Our second panel today is made up of one witness only, but represents a very important voice on the subject of bail—the voice of the United States Judicial Conference. Judge Eugene Davis is the United States Circuit Court judge for the fifth circuit court of appeals. He's also the chairman of the Advisory Committee on Criminal Rules of the Judicial Conference. Judge Davis was appointed to the bench in 1983 by President Reagan.
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    We want to welcome you today, Judge Davis. We're very happy to have you with us. Your complete testimony will be admitted into the record, without objection. I hear none; it's so ordered. You may give us a summary as you see fit.


    Mr. DAVIS. Mr. Chairman, I appreciate very much the opportunity to be here. I hope I can be helpful to your process.

    Mr. MCCOLLUM. Thank you.

    Mr. DAVIS. My main message to you is that if you feel that this change is desired, that you follow the Rules Enabling Act process and go through the rules procedure. But before I get to that, let me say that I only heard about this bill Monday. So I'm playing a little catch-up here, and I heard the testimony of the witnesses now and really learned for the first time what the procedure is in Florida on the bail.

    But if I could go through these forms that I've attached to my testimony and demonstrate to you how it's done in the vast majority of the Federal courts, if I could do that very quickly—when a judge—and usually the magistrate judges actually handle this—when a judge determines to release a defendant, it's a two-step process. The first step is setting conditions of release. The Administrative Office furnishes these forms to the court, and my personal belief is that all courts use these forms. The conditions of release forms are Form 199, and we've got A, B, and C. This order simply says that, Defendant, you're released pending your trial, if you comply with these conditions, and 199-B has a laundry list there that the judge can check. If it's a drug case, obviously, he's going to have some requirements there. If it's a violent case, he's going to have some requirements there.
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    One of the conditions of release that the judge can opt for is that the defendant execute a bail bond with a solvent surety, and that gets us into the problem we have today. If the judge opts for that solution, then we get to the bail bond, and that is a separate bond and the form is AO-98. It is, indeed, an appearance bond. This is the only document the surety signs. The surety does not sign the conditions of release. That only obligates the defendant.

    So in the vast majority of cases—I mean, I was a district judge for 7 years, and since I've been up here to the Judicial Conference and I've talked to a bunch of judges, and none of them had ever heard of forfeiting a bond for anything other than nonappearance. Yesterday I got on the phone and I found a couple of people who had. But it's my belief that is extremely unusual to forfeit a bond for anything else.

    Let me get back to my form. If the defendant and the surety sign the form appearance bond that most judges use, the only obligation the surety has is to guarantee the appearance of the defendant. It has no—it doesn't reference the conditions of release.

    So the only time the surety has the problem that we're talking about today is when the judge alters this form and adds into it language like what happened in Vaccaro, something to the effect that this bond is also conditioned upon the defendant complying with the conditions of release.

    Now if the judge alters this form, then we have the problem, and if the defendant violates one of the conditions of the release after that bond has been so altered, then the judge would have the authority to forfeit the bond.
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    I did not hear any testimony today on how many bonds had been forfeited. I would be shocked if there are very many bonds that have been forfeited for any reason other than nonappearance. There obviously have been a few. There are a few cases on the books.

    Let me say, before I get to my main point, let me just say, also, that I disagree with the earlier witnesses on the Draconian effect of Rule 46(e) as it's presently written; (e)(1) does say that, if there's a breach of a condition of a bond, the district court shall declare a forfeiture of the bail. But then (e)(2) says, the court may direct that a forfeiture be set aside in whole or in part. So the judge has absolute discretion, it seems to me, to set aside that forfeiture if he's decided to grant it. And then he can go on later on and remit the bond. So I don't think it's the case that 46(e) absolutely requires the judge to forfeit the bond.

    Now on the Rules Enabling Act procedure, let me just say that, on the limited study that I've made of this, it does not seem to me to be a straightforward question here. In other words, if this issue came before our committee, we would be interested in knowing why the judge would add the conditions of release and make it a condition of the bond? It seems strange to me that a judge would do that. I would like to know why they do that. I would like to know how widespread that practice is.

    It might be that there are some types of conditions of release that justifiably should be made a condition of the bond. So that if the rule is amended, maybe it should be limited to major breaches, so that you don't get into giving the judge authority for forfeiting a bond just for a nitpicking or a minor breach of a condition of release.
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    It just seems to me the Rules Enabling Act process is well designed to gather information and make an informed judgment on how this rule should be amended. As I said in my testimony, my written testimony, we do have a meeting scheduled next month, and in view of your interest in this question, I assure you that I will put it on the agenda, so that we can air the problem.

    That's essentially all I have, Mr. Chairman.

    [The prepared statement of Mr. Davis follows:]


    Good morning Chairmen McCollum. On behalf of the Judicial Conference of the United States I wish to thank you for inviting me to appear before the Subcommittee today to discuss H.R. 2134, the ''Bail Bond Fairness Act of 1997.'' My name is W. Eugene Davis. I am a circuit judge in the Court of Appeals for the Fifth Circuit. I chair the Judicial Conference's Advisory Committee on Criminal Rules (''advisory committee'').

    Under Rule 46(e)(1) of the Federal Rules of Criminal Procedures a district court shall forfeit the bail of a person who breaches a condition of bond while on release prior to trial. Rule 46(e)(2) then authorizes the district court to set aside any forfeiture. Section 2 of H.R. 2134 would amend Rule 46 and authorize a court to forfeit bail only when the—defendant fails to appear as required—by the bond. I urge you and the other members of the subcommittee to defer action on this bill and allow the rulemaking process established under the Rules Enabling Act to proceed.
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    H.R. 2134 directly amends one of the Federal Rules of Practice and Procedure. Its passage would thwart the rulemaking process established by Congress under the Rules Enabling Act, 28 U.S.C. 2071-77. Under the Act, proposed amendments to the federal rules are presented by the Supreme Court to Congress for approval only after being subjected to extensive scrutiny, by the public, bar, and bench. As envisioned by Congress, the Rules Enabling Act rulemaking process offers a systematic review of rule proposals that is designed to identify potential problems, suggest improvements, unearth lurking ambiguities, and eliminate possible inconsistencies. The rulemaking process is laborious and time-consuming, but the painstaking process reduces the potential for future satellite litigation over unforeseen consequences or unclear provisions. It also ensures that all persons, including the public, who may be affected by a rule change have had an opportunity to express their views on it. Direct amendment of the federal rules circumvents this careful process established by Congress.


    Rule 46(e) has not been carefully examined by the advisory committee since the rule's promulgation in 1944. The advisory committee has received no complaints or comments from the bar, bench, or public on the rule, and the committee is not otherwise aware of any problems associated with it. The advisory committee will next meet on April 27-28, 1998, in Washington, D.C. In light of Congress' interest in this matter, I will place the proposed amendment of Rule 46(e) in H.R. 2134 on the agenda of the advisory committee's meeting.

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    A defendant is frequently granted bail and released from detention subject to a number of conditions as authorized by 18 U.S.C. 3142. The release conditions are many and varied, and it is important that a court retain the authority ''as it presently does'' to ensure that a defendant complies with them. It has been my experience that when a defendant breaches a condition of release, the judge ''revokes'' the bail and remands the defendant to custody without ''forfeiting'' the bond (requiring payment by the surety). It has also been my experience that a release bond is ''forfeited'' only when a defendant fails to make a required appearance. Indeed, the standard appearance bond form issued by the Administrative Office of the U.S. Courts, which I believe is used uniformly by the federal courts, only obligates the surety to pay the proceeds of the bond if the defendant fails to appear. So, unless the defendant fails to appear as ordered the surety has no exposure under the standard appearance bond. A separate standard form is used that contains the various conditions of pretrial release and the governing sanctions for the defendant's violations. But the surety does not sign and is not bound by those conditions, which apply solely to the defendant. Copies of each form are attached.

    Rule 46(e) may need further study. But we must be careful not to unintentionally disturb the court's authority to ''revoke'' bail and enforce all the conditions of release. If given an opportunity to do so, the advisory committee will focus on: (1) whether a change or clarification in Rule 46(e) is justified; and (2) if so, whether we should expand the specific language proposed in H.R. 2134 to Rule 46(e) to make it clear that the court has the authority to ''revoke'' bail for failure to comply with any release condition as well as the authority to forfeit the bond for the defendant's failure to appear.


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    Under the rulemaking process, proposed changes are vetted and thoroughly studied and debated. Hidden problems are often discovered and brought to the attention of the advisory committee. By deferring immediate action and permitting the rulemaking process to proceed on this proposed amendment, this subcommittee and Congress will have assured itself of a well- documented record on which to make a decision once the rule change has completed its course in accordance with the Rules Enabling Act.

    I look forward to continuing this dialogue with you and other members of the subcommittee. I would be happy to answer any questions that you may have. Thank you.




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    Mr. MCCOLLUM. Thank you very much, Judge Davis. I really appreciate your willingness to take this up next month at the meeting, and I'm pleased that you are. I'm surprised to learn that the courts were not already familiar with this problem, but I now recognize that fact from the questions asked of the previous panel.

    One question that occurs to me revolves around what the surety industry has said to us today and what they've said privately to me as a group—which is why I introduced the bill: it appears that there aren't any bonds being written at the Federal level. That may be the reason you don't hear about the problem; it's been so long since they've written bonds at the Federal level that there aren't any examples to speak of. There may be only a handful of companies around the country willing to write them because they think a risk is there that may not actually exist. However, that seems to be the appearance. Am I wrong in that? Are there bonds actually being written at the Federal level?

    Mr. DAVIS. There are not many bonds being written, but my perception is that it's not because of this problem. Under the Federal statutes, a defendant who is eligible for release can come in and ask the judge to let him sign—let's say the judge sets a $5,000 bond. Instead of having a surety guarantee that bond, which would cost the defendant typically 10 percent, say $500, the judge will let the defendant deposit that $500 in the registry of the court, and not require a surety bond. So, in my experience—and, as I said, I've made no study of it—in my experience, that is the way most appearance bonds are secured, by a deposit, which is——

    Mr. MCCOLLUM. So, the appearances are secured, but there's no bond?
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    Mr. DAVIS. There's no bond, but it's not because of this problem. It's because of the provision in the statute that allows——

    Mr. MCCOLLUM. All right. Let me ask this question: why do the States have a system where they rely heavily on the surety bond and the bail bondsman and the Federal system obviously doesn't?

    Mr. DAVIS. Well, I think the purpose behind this legislation was so that the defendant wouldn't just throw his money away on a premium, and he would put the deposit in the registry of the court, and if the court felt that was enough security—maybe he'd have his parents sign the bond and put the $500 in the registry of the court, and that was enough security.

    Mr. MCCOLLUM. So there's no sense among the judges that bail bondsmen would help the system in getting more people to appear by the encouraging process? I'm not suggesting in this legislation, nor to you today, that we change that portion of the law that gives you the discretion to do exactly what you're doing today.

    However, I gather that your experience doesn't say that there would be any more or any less encouragement to the defendant to actually appear if you had a bail bondsman out there keeping track of him. You don't think it's probably true in the State for us, either, I gather?

    Mr. DAVIS. I really don't know about that.
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    Mr. MCCOLLUM. All right. I'm going to come back to myself later, but Mr. Barr indicates that he needs to leave. Ms. Jackson Lee, would you allow me to let him ask a question right now out of order?

    Ms. JACKSON LEE. We're both in the same boat. Is he taking the full time then?

    Mr. MCCOLLUM. No, he says he has just one question.

    Ms. JACKSON LEE. All right.

    Mr. BARR. And I appreciate the gentlelady from Texas and the chairman. We have some other hearings on bounty hunters on the Constitution Subcommittee that I need to be at briefly.

    Let me, if I could, Judge, make sure that I understand both the appearance bond form and your explanation of it. I think I do.

    Let's presume that we have a Federal judge that sets extremely onerous and picayune conditions—that the defendant brush his teeth three times a day. It's your position, as reflected in this appearance bond, which is the legal document to which the bail bondsmen would bind themselves, if there were a surety bond, that they're not guaranteeing that that person brush their teeth three times a day. All they are guaranteeing is that, if that person fails to do so and is called back into court to appear before the court to answer for alleged violations of the conditions of the bond, that they are guaranteeing that that person appear in court for that purpose?
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    Mr. DAVIS. Precisely.

    Mr. BARR. Okay, thank you.

    Mr. MCCOLLUM. If I could clarify something before I go to Ms. Jackson Lee. My understanding, from what Mr. Barr is asking and what you said earlier, is that the conditions that are in there are not in the appearance bonds you normally see written. However, would you agree that the court in Vaccaro did decide that where those conditions are placed by a judge, in that situation the bail bondsman, if there were a bond, would forfeit on the basis of breaking one of the conditions? That was the Vaccaro decision.

    Mr. DAVIS. That's true; the bail bondsman, if he signs onto these additional conditions, would forfeit if there's a breach of the additional conditions, correct.

    Mr. MCCOLLUM. Well, the point is that some of the folks believe—rightly or wrongly—in the bail bonds industry that these conditions are a fairly common practice, and that, in fact, there are no bonds for that reason.

    In your judgment, what harm would there be in eliminating the opportunity for the judge to add those conditions, since they're not done in the States? In other words, to say you can only have an appearance bond where you have an outside surety bond——

    Mr. DAVIS. Yes, Mr. Chairman, I really——
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    Mr. MCCOLLUM [continuing]. Would there be any harm in that?

    Mr. DAVIS. I really offhand don't know. As I said, if we had this before our rules committee, we'd find out.

    Mr. MCCOLLUM. No, I understand.

    Mr. DAVIS. I really don't know.

    Mr. MCCOLLUM. But I think that's really the critical question. If this would alleviate the concerns of the bondsman, and if, indeed, you could have more bondsmen come in—you don't know whether they would or not, but why not give them that opportunity? The judges apparently right now, rightly or wrongly, they're perceiving that—maybe their legal counsels tell them this—you're at great risk because of the case. That seems to be the problem.

    Ms. Jackson Lee?

    Thank you, Mr. Barr. I didn't mean to hold you, but you asked a question; I thought my followup was pertinent to it.

    Mr. BARR. Yes, it's very enlightening, and it's a very good discussion. Hopefully, we'll also hear back from the Judicial Conference on this as well.

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    Mr. MCCOLLUM. Right. Thank you.

    Ms. Jackson?

    Ms. JACKSON LEE. Thank you very much.

    And I'd like to thank Judge Davis for being here on such short notice. We it appreciate very much, and I probably will follow the line of questioning of my colleagues, because I think this hearing and I think, as I scan Chairman McCollum's legislation, it is to help, and certainly not to hinder. So I'd like to have us eventually, if this matter is resolved, have it where it's resolved with the cooperation of the Judicial Conference and certainly input and to assist your judicial discretion, which I happen to be certainly a big advocate of, that the courts in their wisdom can make decisions, but balance it with some of the needs that have been expressed.

    Let me just, for my own background purposes, when did you get appointed to the district court?

    Mr. DAVIS. In 1976.

    Ms. JACKSON LEE. In 1976. So you served on the district court, and then how long on the court of appeals?

    Mr. DAVIS. Since 1983.

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    Ms. JACKSON LEE. Since 1983. What I would ask, then—that's a wealth of knowledge, and I want to go back to the point, if this legislation was passed, how would it do damage, from your perspective, to the processes that you all utilize in the court? I mean, where would it interfere with what you do?

    Mr. DAVIS. Congress has established this Rules Enabling Act process, and the main benefit to it is, we, the committee I'm on would propose an amended rule, and then it would go out to the bench and bar, and anybody else who we can conceive has any interest in it, with notice; give them the right to come in with comments on it, and if there's any interest, we'll have a hearing and try to find out whether there is a problem and how's the best way to approach it.

    Ms. JACKSON LEE. So if a problem is discovered, you have a hearing, there would not be any necessity on the part of the Conference to stonewall hearing that problem?

    Mr. DAVIS. Oh, absolutely not.

    Ms. JACKSON LEE. Would you be open to the remedy that has been offered in Chairman McCollum's legislation, which is to make the forfeiture based upon failure to appear—there is a ninth circuit case, of course, that talks about the conditions, though we appreciate the wisdom of many of our courts who apparently must have ignored it, but it does exist. So I'm just wondering, would you be open to limiting the forfeiture to the failure to appear?

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    Mr. DAVIS. Well, I'm wide open to that.

    Ms. JACKSON LEE. And would not foreclose that?

    And 1976 to 1983 certainly is a good number of years on the district court. I assume, obviously, you had criminal proceedings before you. Can you recollect or reflect as to what kind of problems you may have had with forfeiture issues?

    Mr. DAVIS. I've never forfeited a bond except for failure to appear. Until the last few days, I had never heard of anybody else doing it.

    Ms. JACKSON LEE. In the course of your activities with respect to that, do you feel, or could you help us out as you proceed in the processes that you will, which is holding meetings, to gather, whether it's scientifically done or not scientifically done, polling to let us know—or I'd be interested in knowing any circumstances that judges are facing where they have in large numbers forfeited on other than failure to appear. Obviously, it's a problem; we've heard it from bail bonds persons, defense lawyers, et cetera, but I'd like to hear what you've gathered from judges, whether you do it informally or otherwise.

    And my last point is, Mr. Chairman, I would like to have his form, if I could, submitted in the record, if he would offer that for the record.

    Mr. MCCOLLUM. It is part of his testimony and it has been.

    Ms. JACKSON LEE. All right, I didn't see it.
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    Mr. MCCOLLUM. It should be at the back of your——

    Ms. JACKSON LEE. Okay, thank you very much. Then I'd like to have it as his testimony——

    Mr. MCCOLLUM. It's all part of the record. You've got a copy.

    Mr. DAVIS. I'd be glad to give you any information we get on it. In fact, the Administrative Office collects all kind of statistics, and they may very well have something.

    Ms. JACKSON LEE. That would be great.

    Let me thank you again for your appearance. Thank you very much, Mr. Chairman. I have a bankruptcy hearing, but it looks like there are bells and votes as well. Thank you very much.

    Mr. DAVIS. Thank you.

    Mr. MCCOLLUM. Judge, I just have one or two quick followups.

    In your time as a Federal judge, how many bonds, appearance or otherwise, would you figure that you've issued or authorized, or whatever?

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    Mr. DAVIS. Surety bonds?

    Mr. MCCOLLUM. Yes, sir.

    Mr. DAVIS. You know, I think they're pretty rare. I was a district judge 7 years, and that was a long time ago, but, I mean, there were a few, but I would say surety bonds in my experience were fairly rare.

    Mr. MCCOLLUM. No more than four or five of them perhaps the whole time you were there?

    Mr. DAVIS. Yes, I would say a half a dozen to a dozen.

    Mr. MCCOLLUM. Out of many, many more criminal cases?

    Mr. DAVIS. Yes.

    Mr. MCCOLLUM. There might have been hundreds of cases you had in 7 years, I assume, because, unfortunately, for better or worse, criminal law dominates the Federal bench, doesn't it?

    Mr. DAVIS. Right, it does. But, again, I would say that my perception was the reason we didn't have a surety bond is we many times gave the defendant the opportunity to make that deposit and get his money back if he appeared; whereas, if he paid the premium on the bond, that money was gone.
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    Mr. MCCOLLUM. And what years were you on the——

    Mr. DAVIS. 1976 to 1983.

    Mr. MCCOLLUM. All right, so that would have been during the time, obviously, after 1966.

    One last question: If your advisory committee were to take up this issue in April, do you have any sense—based on past track records—how long that would take if you recommended a change? What's involved? You gave me some idea what's involved in the process. Is this a year-long process or what?

    Mr. DAVIS. Mr. Chairman, that's one of the down sides of this, but it's about a 2-year process from beginning to end. It goes from the advisory committee to the standing committee, back to the advisory committee, and then to the Judicial Conference, and then the Supreme Court. And there's a waiting period after the Supreme Court reports it out before it becomes law.

    Mr. MCCOLLUM. Currently, do you have other matters that you're likely to recommend at this time?

    Mr. DAVIS. Oh, we have four or five matters coming up at our meeting next month that have already been out for comment and are coming back to us. Yes, sir.

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    Mr. MCCOLLUM. And they'd be already into the thing maybe for a year. So they may have a little shorter time to go yet?

    Mr. DAVIS. Right.

    Mr. MCCOLLUM. But this issue is the only one you know of, if you bring it up, that you'd be initiating—at least at this time?

    Mr. DAVIS. I'm not sure of that. I think we may have other matters, too.

    Mr. MCCOLLUM. Okay. Well, I appreciate it. I would like to get some feedback from you as to what your judges think when you have the advisory committee meeting. I will certainly hold back on moving this bill at least until you have sensed what your advisory committee thinks about it. Then we'll make some determination—with my colleagues, obviously; I don't do anything by myself—as to whether or not we should take any action legislatively. But I think we did bring it to your attention, and I'm very appreciative of your coming today. I appreciate your willingness to look into it because it seems to me it's a matter that deserves some attention. It might be small on the plain of some big things, but it certainly may allow more sureties to be involved in the courts where they want them.

    Mr. DAVIS. Right.

    Mr. MCCOLLUM. Thank you very much. We appreciate that.

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    Mr. DAVIS. Thank you for letting me appear.

    Mr. MCCOLLUM. Thank you. Our hearing is adjourned.

    [Whereupon, at 10:54 a.m., the subcommittee adjourned subject to the call of the Chair.]

(Footnote 1 return)
Subpart (1) of Rule 46(e) presently provides that ''if there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail.'' If H.R. 2134 passes, the amended rule will provide that if ''the defendant fails to appear as required by a bond, the district court shall declare a forfeiture of the bail.''

(Footnote 2 return)
Holmes, The Common Law (Dover ed. NY 1991) p. 249.

(Footnote 3 return)
Id. At 249-50. Holmes adds that, according to the ancient practice, the surety was ''bound 'body for body,' '' and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine.

(Footnote 4 return)
Wm. Blackstone, IV Commentaries on the Laws of England p. 294 (Univ. Chicago ed. 1979). Blackstone adds that

(Footnote 5 return)
Blackstone's adherence to the ''presumption of innocence'' model in general does not restrain him from embracing the ''grace'' model in particular situations. ''[B]ail is . . . taken away, wherever the offense [sic] is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given; viz. the body of the accused.'' Id. At 295. The judge who admitted a defendant to bail on insufficient security was liable to be fined in the event of the nonappearance of the defendant. Id. At 294-5.

(Footnote 6 return)
Blackstone at p. 295. By Blackstone's own time, a host of statutes disentitled defendants from admission to bail for a wide variety of crimes. See also F.W. Maitland, Constitutional History of England (Cambridge Univ. Press 1911) at p. 272:

(Footnote 7 return)
Blackstone, vol. III at Appendix. The bond is obviously given in a civil, rather than a criminal case; but is nonetheless illustrative.

(Footnote 8 return)
Baker v. State, 213 So.2d 285, 288 (Fla. 4th DCA 1968), quoting Reg. v. Badger, 4 Q.B. 467, 114 Eng. Reprint 975 (emphasis supplied).

(Footnote 9 return)
United States v. Milburn, 26 F. 1243, 1247 (D.C.Cir. 1835) (Cranch, C.J.), quoting Coke. See also Blackstone, vol. III at p. 128.

(Footnote 10 return)
Milburn at 1249.

(Footnote 11 return)
See, e.g., Accredited Surety and Casualty Co., Inc., v. State of Florida f/u/b/o Dade County, 1992 Fla.App.LEXIS 4747 (Fla.3rd DCA 1992); State v. Cardinal, 520 A.2d 984 (Vermont, 1986); In Re E.H., 397 N.E.2d 571 (Ill.4th DCA 1979).

(Footnote 12 return)
Cardinal, 520 A.

(Footnote 13 return)
See in Re E.H., supra, at 573:

(Footnote 14 return)
That a surety made his best efforts to prevent the accused from fleeing, or to locate the accused after he has fled, may fuel the surety's claim for remission, in whole or in part, after forfeiture of bail. But a request for remission, ''an appeal ad misericordium [,] . . . [is a]t best . . . granted as an act of grace . . . [not as] a plea in bar.'' United States v. Mack, 295 US 480, 488-9 (1935) (Cardozo, J.).

(Footnote 15 return)
The federal jurisdiction follows the ''grace'' rather than the ''presumption of innocence'' model of bail. Neither the Eighth Amendment nor any federal statute creates a substantive right to bail. Stack v. Boyle, 342 US 1 (1951). United States v. Salerno, 481 US 739 (1987) formally recognizes society's authority and obligation to incarcerate an arrestee who poses a prospect of criminal danger. Such incarceration, known as pretrial detention, is described in the Salerno opinion as administrative, not punitive. On the face of it, such a statement is absurd: the pretrial detainee, living behind bars and walls, subject to the rule of the warden, kept from his job, home, and family, feels himself no less punished than his convicted cellmate. The administrative/punitive distinction, however, looks not to the effect of incarceration on the citizen, but to society's intent in incarcerating the citizen. The defendant is isolated from society to protect society from him until it can be determined at trial that there is no further need to do so. So long as his arrest was supported by probable cause, none of his rights are infracted. He has no right to pretrial release. Pretrial release is an act of grace on the part of the body politic, and the body politic may not be feeling graciously disposed toward him.

(Footnote 16 return)
See Fed.R.Cr.P. 46 and discussion supra at———.

(Footnote 17 return)
See, e.g., United States v. Stanley, 601 F.2d 380 (9th Cir. 1979); United States v. Nolan, 564 F.2d 376 (10th Cir. 1977); United States v. Brown, 410 F.2d 212 (5th Cir. 1969).

(Footnote 18 return)
United States v. Gigante, 85 F.3d 83 (2d Cir. 1996); United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995); United States v. Beard, 1992 U.S.App. LEXIS 8572 (9th Cir. 1992); United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991); United States v. Santiago, 826 F.2d 499 (7th Cir. 1987); Nebraska v. Hernandez, 511 N.W.2d 535 (Neb.Ct.App. 1993); State v. Saback, 534 A.2d 1155 (R.I. 1987).

(Footnote 19 return)
United States v. Terrell, 983 F.2d 653 (5th Cir. 1993).

(Footnote 20 return)
United States v. Dudley, 62 F.3d 1275, 1278 (10th Cir. 1995). The bail contract is to be ''strictly construed in accordance with its own terms,'' Dudley at 1278 quoting United States v. Jackson, 465 F.2d 964, 965 (10th Cir, 1972). Because the bail contract is invariably a contract of adhesion drafted by the government (typically a preprinted form), ambiguities should be resolved in favor of the surety.

(Footnote 21 return)
Dudley at 1278 (''Although the bond could be conditioned on the same factors as contained in the order setting conditions of release, it was not. This particular bond is clear and unambiguous and is specifically conditioned upon the appearance of the Defendant.'')