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BAIL BOND FAIRNESS ACT OF 2001

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

H.R. 2929

OCTOBER 8, 2002

Serial No. 113

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

LAMAR SMITH, Texas, Chairman

MARK GREEN, Wisconsin, Vice Chair

HOWARD COBLE, North Carolina 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

RIC KELLER, Florida 

MIKE PENCE, Indiana 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ADAM B. SCHIFF, California

JAY APPERSON, Chief Counsel 

SEAN MCLAUGHLIN, Counsel 

ELIZABETH SOKUL, Counsel 

KATY CROOKS, Counsel 

ERIC HULTMAN, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

OCTOBER 8, 2002

OPENING STATEMENT 

Page 

The Honorable Lamar Smith, a Representative in Congress From the State 

of Texas, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 1

The Honorable Robert C. Scott, a Representative in Congress From the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1

The Honorable Bob Barr, a Representative in Congress From the State of 

Georgia .................................................................................................................. 2

WITNESSES 

Honorable Edward Carnes, Judge, United States Court of Appeals for the 

11th Circuit, and Chairman, Advisory Committee on Criminal Rules, 

United States Judicial Conference 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 5

Mr. Richard Verrochi, President, Professional Bail Agents of the United 

States 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 28

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress From the State of Texas ................................................................. 47

(1)

BAIL BOND FAIRNESS ACT OF 2001

TUESDAY, OCTOBER 8, 2002

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 4:06 p.m., in Room 

2237, Rayburn House Office Building, Hon. Lamar S. Smith [Chairman of the Subcommittee] presiding. 

Mr. SMITH. The Subcommittee on Crime, Terrorism, and Homeland Security will come to order. We will start with opening statements and then we will get immediately to our expert witnesses, 

and I recognize myself for an opening statement. 

Today’s hearing is on H.R. 2929, the Bail Bond Fairness Act of 

2001. This legislation limits the circumstances for which bail can 

be forfeited. Bail set by a judge in Federal court typically includes 

provisions that require a defendant to make all court appearances 

and meet other conditions, including a requirement that the defendant ‘‘break no laws.’’

This bill was introduced in response to a 1995 decision by the 

Ninth Circuit. Under this legislation, a Federal judge is not allowed to forfeit bail bonds except in cases where the defendant actually fails to appear physically before a court as ordered. Forfeiture is not permitted when the defendant violates some other 

condition of release. 

Our witnesses are here to shed light on two issues relevant to 

this legislation. The first issue is the extent to which Federal 

judges have ordered the forfeiture of bail for violations of conditions 

of release other than appearance in court. The second issue is 

whether Federal judges should be prohibited from ordering such a 

forfeiture. 

I thank our witnesses for being here today. We have the exact 

right two witnesses, I think, one on each side of the equation, and 

we look forward to their testimony. 

At this time, I will recognize the gentleman from Virginia, the 

Ranking Member, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

in convening this hearing on the Bail Bond Fairness Act of 2002. 

I believe in the concept that a defendant is entitled to be considered innocent until proven guilty. Being freed during pendency of 

trial is vital to a defendant being in a position to aid his or her 

own defense. Bail is the process by which defendants are generally 

released during pendency of trial. 

2

One way through which the defendant is able to remain free during a pendency of trial is having a surety on a bail bond. The surety may be cash, such as a bail bondsman, or asset-based, such as 

through a family home. Traditionally, bonds are used to assure the 

defendant’s appearance for court proceedings. However, under current court rules, the surety on the bond may be deemed forfeited 

if the defendant violates any condition of his or her release. 

I am a cosponsor on this bill because I am concerned that we 

have put a chill on that mechanism and, therefore, the prospects 

of release for some defendants because if we subject the surety to 

forfeiture for violations of conditions, they may not want to grant 

the bond, or go on the bond. I am also concerned that it places an 

unfair and duplicative burden on those who provide the surety, 

whether family or commercial provider, to require them to assure 

compliance by the defendant with all conditions of the release. 

This approach appears similar to the approach of forcing the entire family out of public housing if one family member, whether in 

the housing or not, is found in possession of drugs, even though the 

family may have no control over that family member’s activities. I 

don’t understand why requiring forfeiture of the bond is necessary. 

In addition to the threat of loss of freedom, the court also has pretrial supervision officers whose job it is to monitor the compliance 

of the defendant, and that defendant will be in court to be subjected to those sanctions. Otherwise, the bond can be forfeited because the defendant didn’t show up. 

So, Mr. Chairman, given those questions and concern, I look forward to the testimony of our witnesses for enlightenment. 

Mr. SMITH. Thank you, Mr. Scott. 

We have also been joined by the gentleman from Georgia, who 

happens to be the original sponsor of this legislation, Mr. Barr, and 

he is recognized for an opening statement if he would like to be. 

Mr. BARR. Thank you very much, Mr. Chairman. I am sure I 

echo the sentiments of the other Members of the Subcommittee in 

thanking you for convening this hearing. I very much appreciate 

the distinguished witnesses being with us today. 

This is not a new topic. We have had hearings in prior Congresses on this issue, but with each year that passes, it is my impression from talking with many in the bail bond industry, as well 

as judges, as well as attorneys who are concerned with the efficient 

functioning of our judicial system—and the bail bonding aspect is 

a very crucial part of that—the problem grows not less important 

but more important. 

The decision in Vacarro, we believe, is one that unduly restricts 

and restrains the proper functioning of the bail bond system, and 

I think that in the absence of having clear Congressional intent reflected in legislation such as is before us today or in some other 

legislation that similarly addresses the problem of appearance 

bonds, which is the purpose, as I understand it, from having been 

both a prosecutor and defense attorney, the purpose of a bail bond, 

essentially, and that historically is true in our country, which has 

become, because of the Vacarro decision, essentially performance 

bonds or condition bonds, in which case the bail bond agent assumes liability for anything from the type of person that the defendant associates with, to how they behave in their home, to all 

3

sorts of other aspects, other than the appearance. It has created, 

as I understand it, demonstrably serious problems in the proper 

functioning of the bail bond system, at least as it is applicable to 

Federal criminal proceedings. 

The legislation that is before us today enjoys bipartisan support 

on this Subcommittee as well as on the Judiciary Committee itself. 

It is very specifically tailored. It simply addresses this aspect of 

rule 46(e). I think that it does not sweep too broadly. 

I recognize that the powers that be, whatever those powers are, 

it is always difficult once a certain procedure is set into to move 

or effect change, but I do believe that the very narrow scope, Mr. 

Chairman, of what we are proposing today in this legislation is 

very much in keeping and provides the proper balance between the 

role of the judiciary and our distinguished jurists, both at the Federal District Court level as well as our magistrate courts and on 

appeal, the Courts of Appeal and the Supreme Court, but it also 

reflects the reality that the aftermath that we are having to live 

with in the Vacarro decision really is unduly limiting and, in a 

sense, basically eroding the very foundation of bail bonds in our 

Federal system in a way that I don’t think, at least I hope not, was 

intended by the Vacarro decision. But that is, in fact, what it seems 

to have turned out to be. 

So I think this legislation simply gets us back where we had 

been for many, many years and it does, I feel very strongly, properly reflect the balance that we need in our system. It does not in 

any, I do not believe, in any way, shape, or form erode very important power and role of the judiciary, but it does simply get us back 

to where we had been and, I think, really need to be, and that is 

to have a viable bail bond system in our Federal criminal system. 

We have to focus our energies on appearances, the appearance 

bond, that is, and not continue to create tremendous liability and, 

therefore, a disincentive for bail bonding companies and agents in 

their profession to provide these services that are necessary to ensure that, to the extent possible, consistent with the safety of the 

community and the Federal rules and judicial precedent, we will 

have individuals to be able to properly secure bonds during the 

pendency of the action against them. 

So I hope this hearing moves us down the road toward a more 

balanced, realistic understanding of this problem and that we can 

eventually, hopefully, sooner rather than later, rectify this with 

this legislation, which, again, we have tried to craft it very narrowly and properly, reflective of the equities involved on the judiciary side as well as on the prosecution side as well as with regard 

to the role of the bail bond agent, which basically crosses both 

sides. 

So thank you very much again, Mr. Chairman and other Members of the Committee, for supporting this and for having this hearing, and I would like to once again thank our distinguished panelists who we will hear from today. 

Mr. SMITH. Thank you, Mr. Barr. 

We will go to our witnesses, and I will introduce them now. They 

are the Honorable Edward Carnes, Judge, United States Court of 

Appeals for the 11th Circuit, and Chairman, Advisory Committee 

4

on Criminal Rules, United States Judicial Conference; and Richard 

Verrochi, President, Professional Bail Agents of the United States. 

We welcome you both, and Judge Carnes, we will begin with 

your testimony. 

STATEMENT OF HONORABLE EDWARD CARNES, JUDGE, 

UNITED STATES COURT OF APPEALS FOR THE 11TH CIRCUIT, AND CHAIRMAN, ADVISORY COMMITTEE ON CRIMINAL 

RULES, UNITED STATES JUDICIAL CONFERENCE 

Judge CARNES. Thank you, Mr. Chairman, Mr. Scott, Mr. Barr, 

and staff. I appreciate the opportunity to be here and to represent 

the Judicial Conference of the United States in its opposition to 

this legislation. Given the brevity of time for remarks, I will rely 

primarily on my written testimony and seek to make two points in 

my oral remarks. 

The first is that this legislation is based on factual premises that 

are simply not true and that are demonstrably not true. Section 

2(a)(5) states as a predicate for the legislation that, ‘‘In the absence 

of a meaningful bail bond option, thousands of defendants in the 

Federal system fail to show up for court appearances each year.’’ It is not true that there is no viable bail bond option in the Federal 

system. Each year, thousands of defendants are released on unsecured bonds, on cash bonds, on the posting of other collateral, and 

some even on the posting of surety bonds. We have supplied the 

Committee with a chart showing those numbers. Seventy-five percent of the people who are released are released on bond. The other 

25 percent are released on personal recognizance. 

All of the bonds that I have mentioned, the types of bonds are 

viable bail bond options. It is not true there are no viable bail bond 

options in the Federal system, nor is it true that thousands of defendants in the Federal system fail to show up each year. As the 

table incorporated in my written testimony reflects, last year, of 

38,000 defendants released, only 878, or 2.3 percent of them, failed 

to show. That is a no-show rate that I believe would be the envy 

of any system anywhere. The table also shows for the past 10 

years, the no-show rate has never been above 3 percent. It has 

never been 1,000, much less thousands. 

The Federal criminal system does not lack viable bail bond options and it does not have a serious problem with no-show defendants. 

The second point I would like to make is to urge you to please 

consider these decisions that you are thinking about overruling. 

Section 2(a)(3) targets for disapproval and for overruling one specific decision. That was the Vacarro decision. I invite your attention 

to that. 

The appellant in Vacarro was not a surety company. The appellant was the defendant, John Joseph Vacarro. He had committed 

some crimes, including racketeering, and had been convicted of 

them. He was released on bond pending appeal. He signed a surety 

bond along with a surety, which is a common practice, making himself jointly and severally liable. 

One of the conditions expressly incorporated into it was that that 

he commit no crimes while he was out on bond pending appeal. He 

proceeded to commit very serious crimes. He committed conspiracy, 

5

distribution of cocaine, extortion, and racketeering. The District 

court revoked his bond. He appealed. The surety company filed a 

late notice of appeal and was dismissed. It wasn’t even in the case 

on appeal. 

So the appeal case decided, the decision you are wanting to overturn, Vacarro, decided that Mr. Vacarro himself should suffer the 

loss of his liability on that bond because he committed a half-dozen 

or more very serious crimes. I think there are few people who, upon 

reflection, would disagree with the position that the Ninth Circuit 

had in that case, which was compelled by the wording of 46(e). 

A similar case decided the very same year in the Second Circuit 

in New York, the Gigante case, illustrates the same point. Vincent 

Gigante was the head of the Genovese crime family. He was a mob 

boss who was pending trial on crimes he committed in his position 

as mob boss. He got released on pretrial release for $1 million in 

bond, secured by the houses of his three children and their spouses. 

The judge says, I want you to know up front, I am going to forfeit 

that bond, they are going to lose their houses, if you commit any 

crimes while you are out pending release pending trial. 

Mr. Gigante couldn’t bear the thought of him being impeded in 

the commission of his crimes while he was released pending trial, 

so he appealed that decision. No commercial surety is in it. He 

asked the Second Circuit, please tell the District court they can’t 

make my bond conditioned on me behaving pending trial. All they 

can make it conditioned on is me showing up, me appearing. Don’t 

threaten me with the loss of my children’s homes if I commit some 

more serious crimes. The Second Circuit rejected his position. 

My point is that John Joseph Vacarro and Vincent Gigante 

would applaud this legislation because both of them would have 

won their appeals. Mr. Gigante would have been told, go ahead and 

commit your crimes. It is not going to jeopardize your children’s 

homes. That is a bad policy position. The Judicial Conference of the 

United States opposes it, and I will be glad to answer any questions that the Committee may have. 

Mr. SMITH. Thank you, Judge Carnes. 

[The prepared statement of Judge Carnes follows:]

PREPARED STATEMENT OF THE HONORABLE EDWARD CARNES

Good afternoon Mr. Chairman. I appreciate the invitation to testify today on behalf of the Judicial Conference of the United States, regarding H.R. 2929, the ‘‘Bail 

Bond Fairness Act of 2001.’’ My name is Ed Carnes. I am a circuit judge on the 

United States Court of Appeals for the Eleventh Circuit with my chambers in Montgomery, Alabama, and I am here in my capacity as Chair of the Conference’s Advisory Committee on Criminal Rules (‘‘advisory committee’’). 

The Judicial Conference of the United States opposes H.R. 2929, because this legislation would impair the authority of federal courts to enforce conditions of release 

prior to trial, including conditions that may be essential to public safety. We also 

oppose H.R. 2929 because it directly amends the Federal Rules of Criminal Procedure, thereby overturning the results of the rulemaking process, a process that was 

established by Congress in the Rules Enabling Act, 28 U.S.C. §§ 2071–77. Finally, 

we want to set the record straight about some factual issues addressed in the ‘‘Findings and Purposes’’ in Section 2 of the bill. 

BAIL REFORM ACTS OF 1966 AND 1984

The Bail Reform Acts of 1966 and 1984, codified at 18 U.S.C. § 3142 et seq., set 

out the Congressional policy governing the pretrial release of an accused. Both Acts 

disfavor pecuniary bail and the existing law instead favors other safeguards that 

both ensure the public safety and the defendant’s appearance at court proceedings 

6

when required. Both Acts provide wide discretion to courts in setting pretrial conditions of release. Consistent with the expressed policy of these Acts, commercial bail 

bondsmen have been used in only a small fraction of cases. 

Section 2 of the Bail Reform Act of 1966 revised bail practices to assure that all 

persons, regardless of their financial condition, would not needlessly be detained 

pending their appearance in court, when detention served neither the ends of justice 

nor the public interest. ‘‘Danger to the community and the protection of society were 

not to be considered as release factors’’ under the 1966 Act. S. Rep. No. 225, 98th 

Cong., 2d Sess. 3, reprinted in 1984 U.S. Code Cong., & Adm. News 3182, 3187. 

The 1984 legislation amended the Bail Reform Act to expand the discretion of a 

court in setting release conditions. The Senate Judiciary Committee reported that: 

‘‘Many of the changes in the Bail Reform Act incorporated in this bill reflect the 

Committee’s determination that Federal bail laws must address the alarming problem of crimes committed by persons on release and must give the courts adequate 

authority to make release decisions that give appropriate recognition to the danger 

a person may pose to others if released. The adoption of these changes marks a significant departure from the basic philosophy of the Bail Reform Act, which is that 

the sole purpose of bail laws must be to assure the appearance of the defendant at 

judicial proceedings.’’ S. Rep. No. 225, 98th Cong., 2d Sess. 3, reprinted in 1984 U.S. 

Code Cong., & Adm. News 3182, 3185–3186. (emphasis added) 

The Bail Reform Act, as amended in 1984, requires a court to determine whether 

there is any condition or combination of conditions that will reasonably assure that 

the defendant will appear in court as required, and at the same time assure the 

safety of others in the community while the defendant is free pending trial. It contains a Congressionally mandated preference for imposing the least restrictive bail 

condition on a person charged with a non-capital offense who must be released ‘‘on 

personal recognizance, or upon execution of an unsecured appearance bond in an 

amount specified by the court . . . unless the judicial officer determines that such 

release will not reasonably assure the appearance of the person as required or will 

endanger the safety of any other person or the community.’’ 18 U.S.C. § 3142(b). 

The Bail Reform Act sets out thirteen specific conditions of release, which can be 

imposed by a court separately, in combination, or as hybrid versions, but only if the 

court finds that release on personal recognizance or on an unsecured appearance 

bond is inadequate. In fact, the majority of the 38,000 defendants released in fiscal 

year 2001 were released on the two least restrictive conditions, either personal recognizance or an unsecured appearance bond. 

Accordingly, unless a court imposes other conditions, an accused is released on 

personal recognizance by promising only to make all further court appearances as 

required and not to commit crimes while on bond. There are no financial conditions. 

If not released on personal recognizance, an accused may be released on an unsecured personal bond. This is not a commercial bond. Rather, an unsecured personal 

bond is a promise by the accused to pay into court a specified sum of money if the 

accused fails to appear as required. A court’s determination to release an accused 

on an appearance bond of this type means that the accused will be released without 

deposit of cash bail or collateral in most cases. Release on personal recognizance or 

on an unsecured appearance bond were available prior to 1966, but the 1966 legislation created a strong policy in favor of their use. 

In practice, the requirement of obtaining a co-signer for an unsecured bond often 

serves as an upgraded form of release preferable to one of the other alternatives listed in the Act. A co-signer may be a family member or a friend, preferably employed 

or owning sufficient assets to make the financial undertaking of the bond a meaningful undertaking. It is particularly in these cases in which the forfeiture of a bond 

for breach of a condition of release, other than for failing to appear, becomes an important additional tool for the judge to protect the public safety. 

Commercial bail bond is listed in the Act as the twelfth condition of release. A 

court has noted that the structure of the statute makes the conventional bonds of 

professional bondsmen the least desired condition. United States v. Gillin, 345 F. 

Supp. 1145, 1147 (S.D. Tex. 1972). Others have advocated the abolishment of this 

alternative condition altogether, which was seriously considered during Congressional debate of the 1984 legislation. (ABA Standards for Criminal Justice, 2ed. 

1980, § 10–5.5 says: ‘‘Compensated sureties should be abolished. Pending abolishment, they should be licensed and carefully regulated.’’) If used, the ‘‘obligation of 

commercial sureties to assure the appearance of their clients, and, if necessary, actively to maintain contact with them during the pretrial period, is emphasized.’’ S. 

Rep. No. 225, 98th Cong., 2d Sess. 3, reprinted in 1984 U.S. Code Cong., & Adm. 

News 3182, 3185–3198. 

7

1 H.R. 2134, 105th Cong., 1st Sess. (1997). 

2 As a result of the study, at its April 1998 meeting the advisory committee declined to recommend amending Rule 46(e). On May 7, 1998, Judge Davis wrote to the Honorable Bill McCollum, then Chairman of the Subcommittee on Crime, Committee on the Judiciary, U.S. House 

of Representatives, with copies to the Subcommittee members, advising him of the study and 

actions taken. In response to a letter, dated May 22, 2002, from the Honorable F. James Sensenbrenner, Jr., Honorable John Conyers, Jr., Honorable Lamar S. Smith, and Honorable Robert 

C. Scott, Members of the Committee on the Judiciary, U.S. House of Representatives, to Chief 

Justice William H. Rehnquist, requesting the views of the Conference on H.R. 2929, the advisory 

committee again considered this issue and reaffirmed its opposition to the legislation at its 

meeting in April 2002. The Conference subsequently adopted the advisory committee’s rec- ommendation in September 2002. 

THE PRESENT SYSTEM AND WHAT H.R. 2929 WOULD DO TO IT

Section 3142 of Title 18 authorizes the conditional pretrial release of defendants 

in the federal criminal system. Where a federal judicial officer determines that release of the defendant on personal recognizance or on an unsecured appearance 

bond will not reasonably assure that defendant’s appearance or will endanger the 

safety of anyone in the community, section 3142(c) expressly provides for conditions 

on release, and it lists as examples thirteen types of conditions that may be imposed. One available condition is that the defendant, or others acting on the defendant’s behalf, execute a property or secured bail bond. Among the other conditions 

that may be imposed are that the defendant not possess a firearm, avoid all contact 

with the victim and witnesses to the crime, refrain from the use of alcohol and illegal drugs, stay away from certain places and people, and observe a curfew. The statute also provides that the judge may order the defendant to ‘‘satisfy any other condition that is reasonably necessary to assure the appearance of the person as required 

and to assure the safety of any other person in the community.’’ Rule 46(e) of the 

Federal Rules of Criminal Procedure sets out the procedure relating to forfeiture of 

surety bonds and to setting aside or remitting of any forfeiture. 

Section 3 of H.R. 2929 would eliminate the power of a federal judge to forfeit bail, 

including a bail bond, for failure to satisfy a condition of release, other than failure 

to appear before the court. It would rule out the use of forfeiture or the threat of 

forfeiture to enforce conditions of release that are necessary to assure the safety of 

innocent people and the community as a whole. While the impetus for this legislation comes from professional bail bond interests, its provisions are not limited to 

cases in which they put up the surety bond, or even to cases in which there is a 

surety bond. 

Last month, the Judicial Conference formally resolved to oppose legislation that 

would amend Rule 46 to restrict a judge’s power to forfeit a bail bond to instances 

where the defendant fails to appear before the court. This Conference position followed a careful examination by the advisory committee of Rule 46(e) and of the consequences of removing the authority of judges to forfeit bonds for reasons other than 

failure to appear, as H.R. 2929 would do. 

Shortly after the previous chair of the advisory committee, Judge W. Eugene 

Davis, testified before this Subcommittee on March 12, 1998 regarding an earlier 

version of this bill,1 the advisory committee undertook a study of the proposal. As 

part of that study, we conducted a survey of magistrate judges, the front-line judicial officers who preside over virtually all of the proceedings governing the pretrial 

release of defendants in the federal system. The study revealed that Rule 46(e) is 

working well in its current form.2

In a large majority of the ninety-four federal districts bonds are forfeited only if 

the defendant fails to appear at a scheduled proceeding. In some districts, however, 

courts do incorporate conditions of release as part of the bail bond and may forfeit 

bonds for violations of those release conditions. In those districts, the magistrate 

judges believe that subjecting the posted assets of the defendant, or of a friend or 

relative of the defendant, to risk if the defendant violates a non-appearance condition of release significantly increases the probability that the defendant will comply 

with all the release conditions. Absent this added assurance, these magistrate 

judges would be more reluctant to release a particular defendant. They report that 

they might well decide to retain a defendant in custody instead of exposing the court 

and innocent members of the community to the greater risk that the defendant will 

violate a significant release condition, such as refraining from drug use. In fact, 

some defendants themselves have suggested that their bond be subject to forfeiture 

if they fail to abide by the release conditions as a means of persuading a judge to 

release them. Amending Rule 46(e), as H.R. 2929 proposes, could have the unintended consequence of causing some defendants who would otherwise have been released to be detained instead. 

8

Magistrate judges report that they routinely impose a condition of release that 

prohibits the defendant from contacting specific individuals. This release condition 

is often essential to protect the safety of witnesses in large drug cases, ex-spouses 

and domestic partners of defendants with prior histories of drug abuse, spouses and 

family of defendants charged with felony sexual abuse, child abuse, or domestic violence. The current Rule 46(e) provides judges with the valuable flexibility to impose 

added safeguards in appropriate cases ensuring a defendant’s compliance with these 

and other conditions of release by subjecting a bail bond to forfeiture on a breach 

of these conditions of release. Judges have found that the added supervision provided by the friend, family member, or bondsman whose posted bond becomes subject to forfeiture if the defendant breaches a condition of release is an effective insurance deterring the defendant’s misbehavior. 

Some defendants gain their release by posting their own cash or property as bail. 

Others have relatives or close friends post their property or act as sureties for the 

defendant. As the Bail Reform Act intended, significantly more federal defendants 

secure their release by putting at risk their own money or property or persuading 

a relative or friend to do so, than use corporate sureties or bail bonds firms. When 

defendants themselves or their families or friends put up the collateral, and it is 

at risk of forfeiture for failure to comply with non-appearance conditions, the defendant has a powerful incentive to comply with those incentives. The defendant has 

a powerful incentive to observe a curfew or travel restriction, to stay away from a 

victim, or to stay away from alcohol, drugs, or convicted felons, and to obey whatever other conditions a judge has imposed for the safety of the community. H.R. 

2929 would remove that powerful incentive by amending Rule 46(e)(1), which now 

provides for forfeiture of the bail if there is a breach of any condition of the bond, 

so that bail could be forfeited only if the defendant fails to appear. And that would 

be true no matter what the bail is or who put it up. 

Consider, for example, a defendant who puts up his own cash or property as bail, 

and among the conditions imposed are that he not possess a firearm and that he 

stay away from the victim of the charged crime or any witnesses. Would we not 

want the defendant’s own posted cash or property to be at risk if he threatened with 

a firearm the victim or a witness? Under the existing rule, a judge could order that 

the cash or property the defendant posted be forfeited if the defendant committed 

that kind of serious breach. If H.R. 2929 is enacted, the judge will be powerless to 

forfeit any bail bond regardless of who put it up and regardless of how serious the 

defendant’s breach of a non-appearance condition is. 

The effects of the proposed legislation extend to third-party custodian sureties, 

such as family members. If their property is at risk when the defendant violates 

curfew or starts using drugs or begins carrying a firearm, they will exert pressure 

on the defendant to straighten up, or they may surrender a misbehaving defendant 

into custody to avoid jeopardizing their property. By insulating their property from 

any risk for the defendant’s failure to adhere to non-appearance conditions, H.R. 

2929 would remove a major incentive for third-party custodian sureties to exert influence over a released defendant’s behavior. 

Even with corporate sureties, who obviously lack a custodial or family relationship 

with the defendant, the threat of forfeiture of the bond can provide an incentive to 

keep tabs on the defendant to insure that he does not leave the territory to which 

he is confined, obeys a curfew, and so forth. To the extent that corporate sureties 

cannot effectively police a defendant’s compliance with non-appearance conditions, 

their inability to do so can be taken fully into account by the judge in deciding 

whether to set aside or remit some or all of any forfeiture. Rule 46(e)(2) & (4) provide for the setting aside or remission in whole or part of any forfeiture ‘‘if it appears that justice does not require the forfeiture.’’

In summary, Rule 46(e) as it now exists provides federal judges with the important flexibility to impose added safeguards to ensure a defendant’s compliance with 

conditions of release. Removing that flexibility, which is what H.R. 2929 would do, 

may jeopardize public safety and the proper functioning of the federal criminal justice system. Federal courts should retain their full authority to enforce all conditions 

of pretrial release. 

THE RULES ENABLING ACT

Because H.R. 2929 would directly amend one of the Federal Rules of Practice and 

Procedure, its enactment would contravene the rulemaking process established by 

Congress under the Rules Enabling Act, 28 U.S.C. §§ 2071–77. Under that important Act, proposed amendments to federal court rules are subjected to extensive 

scrutiny by the public, bar, and bench through the advisory committee process, are 

carefully considered by the Judicial Conference, and then are presented after apVerDate Jan 17 2002 14:54 Dec 12, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\100802\82237.000 HJUD1 PsN: 82237
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3 It may be that H.R. 2929’s reference to thousands of defendants who fail to show up for court 

appearances in the federal system each year includes petty offenders who voluntarily and with 

the blessing of the local federal court pay a fixed sum (usually through the mail) in lieu of an 

appearance. There are tens of thousands of minor offense cases in which that happens each 

year. Examples include speeding or other traffic offenses on a federal reservation, and more specific local examples include speeding on the George Washington Parkway and illegal parking 

at the Pentagon. Our federal court system could not withstand the weight of personal appearances in tens of thousands of such minor cases each year, and so, pursuant to Rule 58(d)(1), 

we allow the ‘‘defendants’’ in those cases to mail in a payment, equivalent to a fine, in lieu of 

appearing. The change H.R. 2929 proposes in the authority of judges to forfeit bail under Rule 

46(e) would not affect any of those minor cases in which defendants send in payments in lieu 

of appearing pursuant to Rule 58(d)(1). It would be irrational to consider those thousands of 

not only permissible but also invited and welcomed non-appearances in minor cases as ‘‘no 

shows’’ relevant to any meaningful discussion of Rule 46(e).

proval by the Supreme Court to Congress. It is an exacting and deliberate process 

designed to ensure that careful thought and consideration is given to any proposed 

amendment of the rules so that lurking ambiguities can be unearthed, inconsistencies removed, problems identified, and improvements made. Direct amendment of 

the federal rules through legislation, even when the process is complete, circumvents the careful safeguards that Congress itself has established. 

THE RATE OF FAILURES TO APPEAR IN THE FEDERAL SYSTEM

Section 2 of H.R. 2929 contains the bill’s proposed ‘‘Findings and Purposes.’’ Section 2(a)(5) states:

In the absence of a meaningful bail bond option, thousands of defendants in the 

Federal system fail to show up for court appearances every year. When this 

happens, the expense and effort by Federal law enforcement officers to investigate and apprehend defendants is wasted and the overall interests of justice 

are thwarted.

This statement has no basis in fact. It is contrary to fact. 

The federal criminal justice system has a track record of ensuring appearance in 

court by defendants that would be the envy of many judicial systems in the Free 

World. As the table below shows, in fiscal year 2001, federal pretrial services closed 

38,050 cases involving criminal defendants who had been released into the community. Of those cases, only 878, or a mere 2.3 percent, failed to appear. In fiscal year 

2000, of the 37,607 defendants released to the community, only 893, or a mere 2.4 

percent, failed to appear. In 1999, of 37,439 defendants released to the community, 

only 920, or a mere 2.5 percent, failed to appear. The table reflects that similar 

records have been produced by the federal system year after year. 3

10

4While 37 of the 94 federal judicial districts have a separate pretrial services organization, 

in the remaining districts pretrial services and probation are administered as part of a unitary 

office with probation officers carrying out both probation and pretrial services functions. 

Much of the credit for the exceptional record reflected in these statistics can be 

given to the federal pretrial services system—a vital part of the federal judiciary. 

Our professional federal pretrial services officers (‘‘PSOs’’) give the courts the means 

to allow defendants to remain in the community, to manage them, and to compel 

them to remain law abiding. 4

Our PSOs serve as the court’s fact finders, investigating the backgrounds of defendants and recommending conditions under which the court may safely release defendants to the community. They enforce the court’s orders, supervising defendants 

by monitoring their activities in the community. During supervision, PSOs hold defendants accountable for their actions and responsible for their obligations. They direct defendants to court-ordered services—such as substance abuse testing and 

treatment, mental health treatment, training, or employment assistance—to help 

them function as responsible members of society. 

Perhaps most importantly, PSOs help ensure public safety and well being. By 

monitoring the activities of defendants in the community, PSOs manage any risk 

they may pose either to individuals or to the public in general. Their important 

work is crucial to the fair administration of justice in the federal system. I have attached to this statement, for your review, a copy of the 2001 Year-in-Review Report, 

prepared by the United States Probation and Pretrial Services System, providing 

detailed statistics regarding our pretrial services program and a profile of cases they 

handled last year. For their impressive track record, they should be recognized and 

commended. And the record should be set straight. I repeat once more for emphasis: 

The statement in H.R. 2929 that ‘‘thousands of defendants in the Federal system 

fail to show up for court appearances every year’’ is simply not true. 

Once again, I thank you for the opportunity to appear before you today. I would 

welcome any questions you might have about this issue.


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Mr. SMITH. Mr. Verrochi? 

STATEMENT OF RICHARD VERROCHI, PRESIDENT, 

PROFESSIONAL BAIL AGENTS OF THE UNITED STATES 

Mr. VERROCHI. Thank you, Mr. Chairman. My name is Richard 

Verrochi. I am a licensed professional bail bondsman in the States 

of New Hampshire and Vermont and I am President of the Professional Bail Agents of the United States, which is the national professional association of bail bondsmen, representing about 14,000 

licensed agents in this country. 

The historic use of bail in the United States is to guarantee the 

appearance of a defendant in court. A bail bond is forfeited by a 

court when or if a defendant fails to appear. In essence, we can 

label a bail bond as a guarantee of appearance, not of performance. 

The Vacarro decision in 1995 changed the Federal courts’ interpretation of what a bail bond is. In essence, the traditional guarantee of appearance was changed to include a guarantee of the personal good conduct of the defendant who was out on bail. Since the 

Vacarro opinion, bail agents and corporate surety bond issuers 

have really been unable to write bonds in the Federal system due 

to the fact of the excess risk. We cannot quantify the risk. 

I, as a bail bondsman, can quantify my risk of appearance or 

non-appearance, but when it comes to whether a defendant is going 

to violate a condition such as non-use of alcohol, drugs, or not getting arrested again, there is no way that I can control that. 

The important thing about the Vacarro decision is that Mr. 

Vacarro appeared at every single one of his court hearings and the 

Vacarro decision has made bail forfeiture an issue when a defendant always appears. So the point that I would like to make and 

point out to you is that H.R. 2929 is very narrowly based. It says 

only that bail in the Federal court will be forfeited on non-appearance only. That is the historic basis for bail. 

A Federal court can also require all kinds of conditions for a defendant when they are out on bail. That could be home monitoring, 

it could be random urinalysis, that sort of thing. Those are conditions of bail that are levied directly on the individual defendant. 

The defendant is responsible for his behavior, not a surety who is 

guaranteeing his performance. 

The real issue comes down to when a surety is a family member, 

be it a set of parents or grandparents who have put up cash or real 

estate as the surety, as the guarantee for the appearance of a defendant. Do these people understand that they are also liable for 

the defendant’s conduct, that they are required to make sure that 

he abides by conditions, additional conditions, when, in fact, most 

of them believe that they are only responsible for his appearance? 

The Bail Bond Fairness Act would restore appearance as the sole 

basis for forfeiture in a bail bond in a Federal court. The bill would 

not hinder, it would not impede, it would not restrain a Federal 

court from levying other types of conditions. But if a defendant violates those other types of conditions, then the court can add more 

conditions or the court can revoke the bail, which is the personal 

penalty that the defendant will pay, and a surety, on the other 

hand, will just guarantee that the defendant appears in court, the 

traditional role of a surety in the United States. 

28

I ask that you support H.R. 2929 because it will allow bail agents 

and individuals to once again take up their traditional role of guaranteeing appearance without threatening bail agents or individual 

families with catastrophic loss because a defendant somehow violates a condition that a court has set down. I believe that a violation of conditions is something that the defendant should pay for 

and that a non-appearance is something that a surety should pay 

for. 

So, Mr. Chairman and Members of the Committee, I appreciate 

your time. I ask that you support H.R. 2929, the Bail Bond Fairness Act, so that I, as a professional bail bondsman, can once again 

serve the Federal court system in the traditional way of the past. 

Thank you. 

Mr. SMITH. Thank you, Mr. Verrochi. 

[The prepared statement of Mr. Verrochi follows:]

PREPARED STATEMENT OF RICHARD VERROCHI

Good Afternoon, Chairman Smith, Members of the Committee. On behalf of the 

Professional Bail Agents of the United States I wish to thank you for inviting us 

to appear before the Subcommittee today to discuss H.R. 2929, the ‘‘Bail Bond Fairness Act of 2001.’’ My name is Richard Verrochi and I am a Licensed Bail Agent 

in New Hampshire and in Vermont. I am the elected President of the Professional 

Bail Agents of the United States. PBUS is the national professional association of 

the nation’s 14,000 bail agents. 

The historic use of bail in the United States is to guarantee the appearance of 

a defendant for all of his court hearings. A bail bond is forfeited by a court if the 

defendant fails to appear as ordered. In essence, we can label a bail bond as a guarantee of appearance. 

H.R. 2929 seeks to remedy the result of the Ninth Circuit’s 1995 opinion in United 

States v. Vaccaro (51 F. 3d 189) which allowed the court to forfeit the $100,000 corporate surety appearance bond posted by a bail agent (even though the defendant 

never missed a court date) because Vaccaro had violated his personal conditions of 

pretrial release by traveling outside of the jurisdiction and committing a new offense. 

In Vaccaro, a federal district court held that the separate order specifying the conditions of the defendant’s release was incorporated into the corporate surety appearance bond posted by the bail agent. In that case, at the bottom of the bail bond face 

sheet supplied by the government were the words, ‘‘see also, the order specifying 

methods and conditions of release attached hereto and made a part hereof.’’ Thus, 

the court determined that the two documents should be read together, and actually 

constitutes one complete order. Then, using Rule 46(e), the court determined that 

a condition had been violated and that the entire bond should be forfeited. It is 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.’’

It is important to make the distinction that the traditional guarantee of appearance was changed by the Vaccaro decision to the extent that a bail bond came to 

guarantee both appearance and adherence of the defendant to the conditions of bail 

set by the court. Even though a defendant appeared for all of his court dates, bail 

could be forfeited for violation of conditions through the use of drugs or alcohol, rearrest, etc. 

Since the Vaccaro opinion, bail agents and corporate surety bail bond issuers have 

essentially been eliminated from the federal pretrial release system, for obvious excessive risk reasons. Federal defendants are therefore faced with reduced means of 

pretrial release, and the federal system is deprived of a vehicle which returns an 

errant defendant to the court at no cost to the public sector. When commenting on 

this issue in 1998 before the House Crime Subcommittee, Congressman Bill McCollum noted that there were some 7,000 warrants outstanding for federal defendants’

failure to appear in court. I can assure you that few, if any, of those 7,000 fugitives 

was released pretrial on an appearance bond issued by a professional bail agent. 

A conditions or performance based bail bond (guaranteeing both appearance and 

personal conduct) is particularly hard on individuals and families who post bail directly with a federal court. In these cases, families, be it parents or grandparents, 

29

run the risk of loosing their life savings or homes simply because a defendant has 

failed a urine test or traveled outside a geographically defined area. Even if the defendant appears at every single one of his court hearings, the family can loose their 

cash or their property because a random urine test came back positive. This is inherently unfair to people who believe that they are merely guaranteeing that their 

son or grandson will appear in the federal court. 

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. This is considered as a defined risk. I know 

that the bail bond executed by me will only be forfeited in a state court if the defendant fails to appear. Therefore, the underwriting of a bail bond 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 an 

indemnitor may be asked to co-sign on the bail bond or place collateral with the bail 

agent. 

In the United States, bail agents post approximately 2.5 million bail bonds each 

year, guaranteeing the appearance of defendants in court. 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? How can a mother 

or grandmother guarantee the behavior of her son or grandson released on bond? 

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 these conditions 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. The Vaccaro decision has transformed the traditional appearance bond 

into a performance bond, a wholly unfair and improper transition. 

Historically, a bail bond guarantees appearance. When the bond is breached, a 

surety cures that breach by producing the defendant in court. If a bail bond is defined as a performance bond and a defendant violates a condition of the bond, by 

failing a urine test, there is no way that a surety can cure this type of breach. A 

surety must be given the opportunity to cure a breach. This can only be done by 

defining a bail bond as an appearance bond. 

The ‘‘Bail Bond Fairness Act of 2001’’ does not interfere with a court’s ability to 

directly penalize a defendant who has violated his conditions of release. A defendant 

who fails to report to pretrial services or who fails urine screening, or who temporarily leaves the jurisdiction without court permission, may still 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. 

The increased ‘‘fairness’’ which the ‘‘Bail Bond Fairness Act of 2001’’ proposes is 

neither fairness to the defendant nor fairness to the prosecution, but fairness to the 

surety. The surety who produces his principal for trial in a timely manner has fulfilled his obligation to the courts and is entitled to discharge of his obligation under 

the bond. He need not be penalized because, while released on bail, the defendant 

ran a traffic light, went across a jurisdictional line for the weekend, or quit his job. 

The consequences of these acts of misconduct will remain where they belong—with 

the defendant. 

Passage of HR 2929 will allow for the release of defendants to be supervised by 

professional bail agents who can appropriately guarantee to the court that the defendant will appear. Sureties—particularly corporate sureties—will 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. 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. 

The ‘‘Bail Bond Fairness Act of 2001’’ would restore appearance as the sole reason 

for forfeiture of a bail bond in Federal Court. This bill would not impede, hinder, 

constrain or interfere with the court’s ability to penalize defendants who have personally violated conditions of bail. This would enable bail agents to write more Federal bonds which would assist the Federal court system in supervising defendants, 

reduce the pretrial detention populations, and result in the return of non-appearing 

defendants to custody in an efficient fashion. Thank you for your consideration of 

H.R. 2929.

Mr. SMITH. I just want to point out before we go to questions 

that we have been joined by the gentleman from North Carolina, 

Mr. Coble. We appreciate, as always, his attendance, too. 

30

Mr. COBLE. Thank you. 

Mr. SMITH. If you have a quick opening statement, we can certainly do that, or are you ready for us to go to questions? 

Mr. COBLE. I will do you the good favor and decline my opening 

statement. 

Mr. SMITH. Great. Thank you, Mr. Coble. 

Mr. Verrochi, is this a fair statement of your position, that you 

feel that as in State courts, so in Federal courts, that there should 

only be appearance bonds, not performance bonds, for the reason 

that the physical appearance of someone is the only condition over 

which the bail bondsmen have actual control? They don’t have any 

control over the other conditions that might be imposed and, therefore, they shouldn’t be held responsible for the actions of the defendant and conditions other than the physical appearance? 

Mr. VERROCHI. That is correct, sir. In a State court, it is an appearance bond, and in the States of New Hampshire and Vermont, 

where I operate, I can cure a forfeiture of my bond. In the event 

that a defendant fails to appear, I can locate him and surrender 

him back to the court and cure the forfeiture. 

Mr. SMITH. Right. 

Mr. VERROCHI. In the case of a violation of conditions, such as 

drug use or violation of curfew, that sort of thing, I can’t cure that. 

There is no way that I can cure that. So when the forfeiture is 

made, I am out. 

Mr. SMITH. And Judge Carnes, why should we hold bail bondsmen responsible for conditions over which they have no control? 

Judge CARNES. Well, if they don’t have any control over the conditions, rule 46(e) itself provides the remedy. Rule 46(e)(2) says the 

court may direct that a forfeiture be set aside in whole or in part 

if it otherwise appears that justice does not require the forfeiture. 

Mr. SMITH. But in point of fact, as rules are enforced today, if 

a bail bondsman is responsible for the defendant not breaking any 

other laws and, in fact, they take drugs or they violate some other 

law, then the bond is forfeited, is it not? 

Judge CARNES. The bond is forfeited, but then the judge has the 

power and authority and is directed to do so. 

Mr. SMITH. But that is seldom exercised, as I understand it. It 

is discretionary, is it not? 

Judge CARNES. I don’t know that it is seldom exercised or I don’t 

know that it is frequently exercised. I am not——

Mr. SMITH. It is my understanding that it is not frequently exercised and, therefore, the real impact is that they are being held responsible for the violation of laws or for other conditions over 

which they have no control. 

Judge CARNES. I don’t see why that wouldn’t be an abuse of discretion under 46(e)(2) or 46(e)(4), which says you can set it aside 

in whole or part. Oftentimes, a bail bond agent in State court will 

bring somebody in months after he was due to appear and have the 

forfeiture set aside, even though there was an actual breach of the 

condition, because he says, I couldn’t help it. I did the best I could. 

Mr. SMITH. There are a lot of judges that probably would be held 

in violation if that standard was enforced as you have just suggested. Maybe that is the case and maybe that is part of the soluVerDate Jan 17 2002 14:54 Dec 12, 2002 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\100802\82237.000 HJUD1 PsN: 82237
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tion, but I am not sure that is a realistic solution, is to go after 

all these judges for abuse of discretion, to tell you the truth. 

Judge CARNES. Well, you don’t have to go after them. All you 

have to do is appeal. If we have to assume that the laws aren’t 

going to be enforced, then I don’t think much of anything that we 

decide is going to make any difference. 

Mr. SMITH. Why should we have a different standard for Federal 

court as opposed to State courts? 

Judge CARNES. Well, why should the Federal standard be modified to the standard that may exist in some, but not all, of the 

States? 

Mr. SMITH. Do you think the same standard ought to be applied 

in the State courts? Is that your position? 

Judge CARNES. No. The Judicial Conference of the United States 

takes the position, this is the standard that ought to apply in Federal courts and it is up to the States to decide what standards 

should apply in their courts. 

Mr. SMITH. Right, but you just said, in response to my question, 

you said, why not apply the same standard to State courts? You 

are not promoting that, I gather? 

Judge CARNES. Oh, no. No. If I said that, I——

Mr. SMITH. Then let me go back to my question. It seems to me 

that we ought to probably have the same standard, and to me, it 

is common sense that you ought not hold the bail bondsman responsible for conditions over which they have no control. Now, you 

are saying that the judge has discretion. My response is, the judges 

don’t exercise that discretion very often and, therefore, it is the bail 

bondsmen that end up paying the price, and that is one reason why 

you see in Federal court, for example, very few of the bonds posted 

of the kind that I think you and I would support. 

Judge CARNES. Excuse me. 

Mr. SMITH. That is a statement, not a question. Let me think 

what else I can squeeze in here in the remaining seconds. 

I think, just to make the point that there needs to be a better 

solution than relying upon the discretion of judges, which is not exercised very often. Otherwise, I think justice is not necessarily 

served when individuals either can’t post bond that they ought to 

be able to post or where individual bail bondsmen are held responsible for actions over which they have no control. I am not sure 

that either situation is the best situation and that is what we seem 

to have today. 

Judge CARNES. But you realize the remedy proposed in this legislation is that even the defendant himself wouldn’t be held responsible, even when he posts the collateral, even when it is his property at stake, even when he joins, he couldn’t be——

Mr. SMITH. Right. 

Judge CARNES. In other words, Mr. Vacarro and Mr. Gigante 

would have had their way. 

Mr. SMITH. Mr. Verrochi, do you want to respond to that, because 

my point has to do with the bail bondsman, not the defendant. 

Mr. VERROCHI. Mr. Chairman, I have always been asked the 

question, is bail a penalty or is it merely an incentive, a financial 

guarantee or some other type of guarantee? I do not believe that 

32

bail should be treated as a penalty in any way. Bail is a guarantee 

of appearance. That is it, bottom line. 

Mr. SMITH. Thank you, Mr. Verrochi. 

The gentleman from Virginia, Mr. Scott, is recognized for his 

questions. 

Mr. SCOTT. Thank you, Mr. Chairman. I want to thank both witnesses. 

Judge Carnes, you have indicated, I think, with the chart that 

it is not thousands, it is just a couple of percent. After somebody 

fails to show in the two-point-something percent, how many of 

them are eventually caught? 

Judge CARNES. I don’t have those figures, Mr. Scott. 

Mr. SCOTT. In how many cases in granting bail is the bond responsible for conduct, that conduct is an element of the bond? 

Judge CARNES. I don’t have those figures. I don’t know if they 

exist or not. Perhaps the Administrative Office——

Mr. SCOTT. Is it normal or unusual? 

Judge CARNES. The best I can tell you is that according to a survey that a magistrate judge on the Committee conducted, the majority of districts don’t impose conditions other than appearance. 

That is the majority of 94 Federal districts. But some do. For example, I understand, I have been told that there are districts in 

New York that do, in California that do, in Louisiana that do. 

Whether that is subject to or caused by any local conditions, I don’t 

know. 

Mr. SCOTT. Does the Judicial Conference have a problem with 

checkerboard standards? 

Judge CARNES. No. The Judicial Conference has not taken a position on whether there should be a uniform practice or policy, and 

the rule itself—— Mr. SCOTT. Wait a minute, on this or generally? 

Judge CARNES. I would have to answer specifically on point-bypoint questions. 

Mr. SCOTT. In those areas that do have conduct as a condition, 

how many bonds are forfeited as a result of bad conduct? 

Judge CARNES. The best answer I can give you on that is to 

amalgamate two sets of data. Page five of the report that was attached or submitted along with my statement has pretrial release 

outcomes. Now remember, this doesn’t break it down on bonded 

and non-bonded. If you look at that data, 2 percent were revoked, 

pretrial release was revoked because of felony charges, 2 percent 

because of other charges, a combined total of 4 percent for failing 

to obey other laws, and then 12 percent for other technicals, which 

I understand to be other conditions, such as not reporting to your 

probation officer or not reporting for a urinalysis. 

Now, if you take that 16 percent and if you assume that the 

same statistics for defendants released apply to those violations, 

then you can try to run the figures across from that. For example, 

75 percent of the defendants who were released are released on 

some type of bond, even if it be an unsecured bond or a corporate 

surety or personal collateral. So if you multiply the 16 percent 

times the 75 percent and back against that number, you will get 

an approximate estimate, but I would urge you to understand that 

is only an estimate. That is the best I can do. 

33

Mr. SCOTT. One of the things that kind of confuses me is that 

this chart, in your two-point-something percent failing to show 

up—well, FTA, failure to show up, is 2 percent, and other problems 

counts to the other 18 percent. If the person is in court and you 

can forfeit their bond, which is essentially assessing a fine, since 

they are sitting right up in your face, why can’t you just fine them 

or jail them for the misconduct? 

Judge CARNES. If you wanted to charge them, arraign them, try 

them for criminal contempt, you could do that, but it would require 

a separate trial unto itself. The procedures for forfeiture of a bond 

have the attraction, the systemic attraction they do because they 

are summary procedures, and for that reason, a lot of judges are 

more likely to release people because they know they have effective 

deterrent. If the only deterrent or the only sanction they could impose was to institute a separate trial for contempt, there would not 

be many folks released on bonds. 

Mr. SCOTT. You suggest that that is an attraction. Some of us 

might think of that as a problem, that you are fining somebody 

without the requisite due process. I mean, you can revoke the release. If they have messed up, they can come back in and say, you 

have messed up. I am going to revoke or terminate the bond, send 

you to jail, and Mr. Verrochi doesn’t lose anything because he has 

appeared, and the guy is sitting up in jail for the rest of the trial. 

Judge CARNES. The same due process protections apply to the 

revocation of release that apply to the revocation of the bond, of the 

forfeiture of the bond. You have got to give the same notice, same 

opportunity to be heard, and hear the same evidence on the record. 

Mr. SCOTT. But you have got this presumably innocent party who 

is the one suffering, because the chance is that somebody is going 

to jail under these conditions. 

Mr. Verrochi, do you ever get in there and get your money back 

from the defendant when he gets his bond revoked? How often do 

people actually pay you back? 

Mr. VERROCHI. Usually, Mr. Scott, we have an indemnitor, a 

family member or something like that, particularly on large bonds. 

Say a $100,000 bond, we would have a mortgage on someone’s 

home. Very rarely is it the defendant. It is usually parents, grandparents, employers, that sort of thing. So when you use the term 

‘‘innocent party,’’ well, we as sureties are a third party, but we also 

have another third party, an indemnitor or a family member, that 

sort of thing, and we go back on them and attempt to collect our 

money from them. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from North Carolina, Mr. Coble, is recognized for 

his questions. 

Mr. COBLE. Thank you, Mr. Chairman. It is good to have you all 

with us. Mr. Chairman, I apologize for my delayed arrival. I had 

another meeting. 

Judge Carnes, do you have statistics on the number of bonds forfeited in Federal court versus the number of bonds forfeited in 

State courts? 

34

Judge CARNES. No, Mr. Coble. I have no idea how many bonds 

are forfeited in State court and I am not sure anyone does, to tell 

you the truth. 

Mr. COBLE. That is just a quirk that interests me, if you did 

know. 

Judge CARNES. The problem is, you have 50 different jurisdictions keeping 50 different sets of records with different degrees of 

uniformity, so——

Mr. COBLE. You are right. I doubt that that can be compiled, not 

easily, anyway. 

Mr. Verrochi, the question comes to me as to how bail agents 

protect themselves against losses. If collateral is usually required, 

one would conclude that the person providing the collateral has an 

interest in assuring that the defendant not violate his conditions of 

release. Does that work as I have just portrayed it? 

Mr. VERROCHI. Yes, sir, it does, and I usually use the phrase, I 

try to put financial handcuffs on a defendant. I try to involve family members or close friends, that sort of thing, who will be liable 

in the event that a defendant fails to appear and we are not able 

to apprehend them. 

In most instances, though, I am not fully covered by the collateral. I almost always have some risk and some exposure, so I do 

suffer a loss even though I have been able to collect something 

from an indemnitor. 

Mr. COBLE. I guess I could put this question, Mr. Chairman, to 

each of the witnesses. If the Congress were to enact this legislation, 

gentlemen, what recourse would Federal judges have if a defendant 

failed to meet the conditions of bond? 

Judge CARNES. The same recourse they have now minus one, 

which would be you can revoke the release—you can add additional 

conditions of release, more restrictive. For example, if the defendant violates the curfew, the judge could order him under house arrest with electronic monitoring, that sort of thing, and that often 

happens. It is not always that a violation of a condition other than 

appearance results in revocation. And also, technically, although it 

almost never happens, you could cite them for contempt because 

the conditions are an order that is imposed, but that is such an onerous procedure that it is almost never resorted to. 

Mr. VERROCHI. I agree with Judge Carnes, and in State courts, 

at least in the States that I operate in, it is quite common to either 

add some very significant, much more stringent conditions to a bail 

if there has been a violation, or to reincarcerate the defendant, and 

the defendant in that situation is paying his penalty by being reincarcerated with no bail because he has violated the conditions, 

and that is what we believe is the appropriate penalty, that the defendant be reincarcerated. 

Mr. COBLE. I thank you, gentlemen. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Coble. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

her questions. 

Ms. JACKSON LEE. I thank the Chairman and I thank the Ranking Member and the witnesses that appeared before us this afternoon. 

35

Let me, Judge Carnes, begin with you and maybe we can work 

through this legislative initiative. I see clearly that the Judicial 

Conference is against H.R. 2929 and the opening page suggests 

that it would impair the authority of the Federal courts to enforce 

conditions of release prior to trial. What would we have to do to 

this legislation to make it palatable to the Conference and to the 

court? 

Judge CARNES. Other than scrap it entirely? [Laughter.] 

I am here as a representative of the Judicial Conference, and 

what the Conference—it is a rather involved and deliberate process 

and the position the Conference has taken is just the position that 

you have stated, which is opposes any legislation that would hamper the ability of judges to forfeit bonds for violation of conditions 

and limit it to just non-appearance conditions. 

Ms. JACKSON LEE. Let me share this thought with you, because 

I am inclined to always seek to be supportive of the Federal judiciary in terms of helping them do their job better or helping them 

do their job. I think my colleagues have highlighted a point that 

I think is extremely important, in that the initial premises of a 

bond was, one, public safety, and two, appearance. We have since 

become more creative, more colorful, and certainly, in certain circumstances because of the particular crime alleged, it may be pertinent. 

But I give you an example on a State level, where the court imposed, for example, a citizen who had been active in civic affairs, 

who still had the respect of his community, however, of course, he 

is now under the criminal system for a particular reason and is 

now looking to be a judge. I think in this instance, the gentleman 

had been on probation circumstances but still was under a bond 

and a requirement by the court. But the court required that individual not to participate in civic activities. 

I am only giving this as a potential added feature that judges 

may render that would seem to be a hardship to revoke. In this instance, you would be revoking the individual’s probation, but I just 

want to use it as a comparison, say to revoke the person’s bond if 

you wanted them to go to a certain church and they decided to go 

to another church. It is not a question of appearance or safety but 

it is a question of the judge’s discretion on designing the basis of 

being released in the instance in the Federal courts. It may be 

something that is done in agreement with the prosecution, but it 

has nothing to do with keeping the community safe. It has nothing 

to do with ultimately discerning or deciding whether or not this individual will appear. 

Is there any way the courts could see that you are even giving 

yourselves an extra burden if you want to then forfeit a bond on 

the basis of some action versus the basis of actual appearance 

which contributes to the safety of the community? 

Judge CARNES. I don’t know what the laws are and the rules in 

various States, but the premises of the conditions in Federal court 

are that they are either necessary to assure the appearance or necessary to assure the safety of others and of the community, and all 

of these conditions that we talk about and are mentioned are that. 

I can’t imagine it being necessary for the safety of the community 

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sponsibilities or go to one church over the other, although in Alabama, we have had some pretty raucous occasions in a couple of 

churches. [Laughter.] 

Ms. JACKSON LEE. I thought if I gave that colorful example, I 

would get a colorful response. [Laughter.] 

Let me ask Mr. Verrochi, then, to respond to the Judge’s comments that all the requirements of the Federal courts have to do 

with either appearance or public safety. I happen to believe that 

there is some flexibility there. How would you respond to that? Is 

that accurate, or do you believe that there are some onerous burdens that causes the bond to be forfeited and has nothing to do 

with public safety and appearance? 

Mr. VERROCHI. I will respect the Judge’s comments. I do believe 

in most instances that the courts set behavior-type or behavior conduct-type decisions—no drinking, no drugs, a curfew, you must 

have a job, those types of things. But the issue, again, is that bail 

should not be a penalty. Bail is an incentive to appear, and typically, it is a third person putting up the bail. In, I would easily 

guess, 95 percent of the cases, it is that third person who will suffer, not the defendant, if bail is forfeited for violation of conditions. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

The sponsor of the legislation, Mr. Barr from Georgia, is recognized for his questions. 

Mr. BARR. Thank you, Mr. Chairman. 

The conditions that you just cited, Mr. Verrochi, I don’t think 

any of us—certainly, I would not disagree with. Those are legitimate and ought to remain completely within the discretion of the 

court. If they believe that the safety of the public requires that the 

person, the defendant, as it were, the person charged with the 

crime not engage in certain behavior that would pose a danger to 

society, I think it is entirely appropriate, and I am not interested 

in limiting in any way the court’s discretion in imposing those conditions, and if the conditions are violated, revoking the bond. 

I do have a problem, and this goes to the heart of the legislation, 

with making the bail bond agent responsible for that. I don’t understand, Judge, why you want to make the person, the company who 

is trying to do their best to assist the court in its decision—the bail 

bondsman doesn’t make the decision whether or not the person 

should get bond. The judge does. They are providing a service to 

the court to facilitate that, to basically enable the individual that 

you and your fellow jurists have made, that this person is worthy 

of being allowed to remain in the community or at least a part of 

the community during the pendency of the action. 

What is the philosophical basis for seeking to penalize the company for the defendant’s failure to live up to those very appropriate 

and very necessary conditions? You can penalize the defendant, 

and you certainly ought to, if, in fact, they violate them. Revoke 

their bond. But what is to be gained by penalizing the company 

and, therefore, at least in the view of the testimony of the bail bond 

industry, drying up, to one extent, and we can argue over the extent to which it has limited the availability of bail bonding, why 

would you want to penalize the company and dry up whatever pool 

it is, however many individuals out there do make it possible for 

these bonds to be met? 

37

Judge CARNES. Let me say, as a predicate to answering your 

question, that this legislation doesn’t do what you say we ought to 

do, which is revoke the defendant’s bond. Even when the defendant 

is the only person on his bond, even when the defendant puts up 

property or cash and the defendant misbehaves, violates very serious and important conditions—let us say the defendant was told 

you can’t possess a firearm, you can’t go near the victim or a witness. That is a condition of release and of this bond, and if you do, 

we are going to forfeit your bond and you are going to lose your 

house. Stay away from them. 

Under H.R. 2929, the defendant takes a rifle and goes after the 

victim and you can’t forfeit the bond. 

Mr. BARR. You can put him in jail. 

Judge CARNES. You can put him in jail, but you can’t forfeit the 

bond. 

Mr. BARR. But if the purpose of setting those types of conditions, 

as opposed to appearance, is to protect society, isn’t that really the 

remedy that you would want anyway, to get him or her off the 

street and get them into jail? 

Judge CARNES. If I were the victim or the witness being protected, I would want as much protection as possible. In addition to 

the threat of release being revoked, I would want to have the defendant, like Mr. Gigante, threatened with the loss of his children’s 

home if he bothered me. I would want to err on the side of the victim as opposed to on the side of the defendant or those who may 

be with the defendant and in a position to influence him. 

We talk about innocent family members, but so often, you have 

a crime family in the literal sense of the word. I have seen 

cases——

Mr. BARR. I have not used that term, and I understand the example you are citing as a very appropriate one and a very egregious one. I suspect that it is somewhat not reflective of the broad 

range of cases that we are talking about here. But when you have 

an individual like Mr. Vacarro or Mr. Gigante or whoever, that 

pose a danger to society, first of all, I would assume that the most 

important remedy would be get them off the street, revoke their release, get them back in custody. 

Would this legislation, then, be acceptable if it were limited so 

that we are talking about an outside bail bond agent, not a member of the family or the defendant themselves, so that the court 

would still retain the ability not only to go after the individual, get 

them back into custody, which this legislation does not in any way 

limit the court’s ability to do that, but limits the scope of the 

Vacarro decision, so to speak, so that it does not penalize the third 

party bail bond agent? 

Judge CARNES. Well, that would certainly be a more narrow and 

moderate approach, a more problem, perceived problem specific approach, and it would probably be subject to less criticism. But I repeat, I am here on a mandate to represent the Judicial Conference’s position and they haven’t been presented with, what 

about this, what about that. What they were presented with was, 

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38

ditions, and their response to that was, no, we shouldn’t support 

that legislation. We think it is a bad idea. 

Mr. BARR. Could I ask one additional question, Mr. Chairman? 

Mr. SMITH. The gentleman, without objection, is recognized for 

an additional 2 minutes, 3 minutes. 

Mr. BARR. Thank you. Three? 

Mr. SMITH. Three it is. [Laughter.] 

Mr. BARR. Mr. Verrochi, if the legislation were modified along 

the lines that we were just discussing with the Judge, would that, 

in the view of your industry or profession, still address the main 

crux of the problem? 

Mr. VERROCHI. It would address the problem as far as a professional surety is concerned, like myself. However, I do believe that, 

in all fairness, setting aside Mr. Vacarro and Mr. Gigante, if that 

is the correct name, setting aside those two gentlemen, when 

Grandma and Grandpa put up their life savings or their house, 

when Mom and Dad are out there putting up all that they have 

to get a defendant out of jail, is it fair—you know, here I am. I 

would certainly be willing to accept a compromise that protects my 

profession and my industry. But when I speak of justice, where is 

the justice when family members, innocent family members are left 

forfeiting a lot of money or their home? 

Mr. BARR. What if the maximum legislation that we could get 

through would be if we could get through legislation that would 

limit the relief provided in H.R. 2929 to outside parties that provide the surety, whether it is—— Mr. VERROCHI. Professional sureties, yes. 

Mr. BARR [continuing]. Or a family, say, because personally, I 

have no problem at all in making the individual, himself or herself, 

if they violate a condition of the bond and it is their property and 

they have put it up or their resources, revoking it, because to me, 

that is something within their control. But an outside party, would 

the industry or the profession have any problem with saying that 

if it is a condition on John Doe and John Doe has put up this security for his bail, that it would be appropriate to revoke it as a condition? 

Mr. VERROCHI. Sir, I think that if that is the halfway measure, 

of course, I would—I believe that third parties, be they family 

members or professional sureties, should be allowed not to have 

their bail forfeited. However, I would like to reiterate the point 

that I believe in our legal system, bail has always been treated not 

as a penalty. Bail has been treated as a guarantee of appearance. 

I am not trying to defend a defendant who is violating his conditions. I truly am not. Nor am I trying to limit the power of a judge 

to set conditions. I am merely trying to say that bail, the traditional bail that we have in this country, is a guarantee of appearance. If someone violates their conditions, put tighter conditions on 

them, fine them, find them in contempt, or put them back in jail. 

That is the appropriate—— Mr. BARR. And I agree, and certainly that is the intent of the legislation. I was just trying to explore whether there might be, as we 

look down the road to the possibility at some point of enacting this 

legislation, whether there is room to maneuver—— Mr. VERROCHI. The simple answer is, yes, sir, there is. 

39

Mr. BARR [continuing]. To compromise, and I appreciate your position, Judge. You are not taking a position on that today. I do not 

want to certainly put words in your mouth. If there is one person 

one should never put words in the mouth of, it is a judge. [Laughter.] 

But maybe down the road we could propose some different language and explore the possibility, because I am sensitive to what 

the profession is saying, that this is a problem. I certainly understand the necessary discretion and power that the courts need to 

maintain, as well, and maybe there is a compromise that we could 

work out and explore that down the road. Thank you. 

Mr. SMITH. Thank you, Mr. Barr. 

Before I recognize Mr. Scott for additional questions, I just want 

to recognize the gentleman from Virginia, Mr. Goodlatte, and appreciate his attendance here, as well. 

Mr. GOODLATTE. I actually do have a question, Mr. Chairman. 

Mr. SMITH. In that case, the gentleman from Virginia, Mr. Goodlatte, is recognized for questions. 

Mr. GOODLATTE. Just two quick questions. I noticed in the summary of the legislation that there was a statement made that thousands of Federal prisoners are not appearing in court, and I am 

wondering why they—it would seem to me that if there was a hard 

time getting bond, that they would be in jail and, therefore, definitely appearing in court. I am wondering how that arises that 

they don’t show up in court because they can’t get bond posted for 

them. 

Judge CARNES. Our position, and the statistics we have that the 

AO keeps on that are very precise, is that there simply are not 

thousands of Federal defendants who don’t appear. The no-shows 

has ranged for the last 10 years from 2.3 percent to, I think, 2.8 

percent, which is about as close to perfection as you ever get when 

you are dealing with individuals charged with crime who are released and have an incentive not to show up. I mean, that is a very 

enviable rate I think any of the States would welcome. 

Mr. GOODLATTE. Is there any evidence that judges are not requiring that bond be posted, simply releasing individuals on their own 

recognizance as a result of this difficulty in getting bond posted? 

Judge CARNES. Well, actually, the Bail Reform Act encourages 

release on recognizance and limits the number of times when you 

can require anything to where it is required to assure appearance 

or for public safety. All this has changed. In 1966, Congress passed 

the Bail Reform Act, a huge push, release more people, do away 

with corporate sureties. We don’t like the fact that wealthy people 

get out and poor people don’t. Have more people released on their 

own recognizance. Have more people released on the premium that 

they would pay corporate sureties. 

And then what happened was too many people were being released and they were committing a lot of crimes. So in the 1984 

Act, that got tightened up a good bit. So we are now in the position 

in which, at least in some districts, conditions short of appearance 

are used effectively as a condition of bond, and that is how we got 

to where we are today, trying to serve the dual aims of Congress 

not to discriminate against folks who didn’t have money, but also 

40

to make sure that we minimize the number of crimes they committed while they are out. 

Mr. GOODLATTE. Mr. Verrochi, do you have any comment on that 

question? 

Mr. VERROCHI. No, sir, I don’t. The Judge has his statistics. I can 

only cite our experiences in State courts. We write about 2.5 million commercial bail bonds each year. 

Mr. GOODLATTE. How many are written in Federal court? 

Mr. VERROCHI. Very, very few. In my 10 years as a bail bondsman, I have written one. It is—at this point, the surety companies 

who bond me say that I cannot write a bond in Federal court because of the conditions, the performance bond which the court is 

requiring. 

Mr. GOODLATTE. Let me ask either one of you, is there a way to 

split this in such a way that if the bond is posted or guaranteed 

by an independent entity, like a bail bondsman, it would get a different treatment than if the bond were posted by the defendant 

him or herself? So in other words, the behavioral conditions imposed in the release could be applied to the bond if it were the individual’s own money but not to your money? 

Mr. VERROCHI. That is the question that Mr. Barr, I believe, was 

asking me, and, of course, our industry, our profession would accept that because it takes the onus of the performance aspect off 

of us and puts it solely on the defendant. 

However, again, I will say it one more time, I believe that bail 

is a guarantee of appearance. It should not be used as a penalty. 

Unreasonable levels of bail, financially speaking, are not appropriate. 

Mr. GOODLATTE. Let me give Judge Carnes an opportunity to respond, as well, since my time has about run out. 

Judge CARNES. I think, without stating the Judicial Conference’s 

position on whether that would be a good idea or a bad idea, that 

Congress has plenary power to do what it pretty much pleases in 

these areas and I don’t pretend otherwise. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from Virginia, Mr. Scott, is recognized for an additional question. 

Mr. SCOTT. Mr. Chairman, I would ask Judge Carnes to convey 

that last sentiment to the Supreme Court. [Laughter.] 

Judge CARNES. I am a member of what the Supreme Court is 

glad to call the inferior courts, so that is my position, anyway. 

[Laughter.] 

Mr. SCOTT. Is there, Judge Carnes, in your regulations a presumption that conduct would not be part of the bond unless there 

is a specific public safety threat? 

Judge CARNES. Or unless it is necessary—my understanding—or 

unless it is necessary to increase the likelihood of appearance. For 

example, stay away from drugs and alcohol may result in the person not appearing. Stay away from convicted felons. Come home 

every night by 11 o’clock and phone your probation officer recording, automated system, that sort of stuff. That is a hybrid of public 

safety and protection and it is also to increase the likelihood of appearance. 

41

Mr. SCOTT. Then you have enumerated—how different are they 

from the kinds of conditions that you would put on a suspended 

sentence? 

Judge CARNES. Supervised release is what we have more in Federal court than—I am certainly familiar with suspended sentences 

from State court, and actually, they can be very similar, very similar, and sometimes they are carried over, to be quite frank with 

you. 

Mr. SCOTT. Did I understand you to say that 95 percent of the 

country doesn’t have conduct as a condition of release? 

Judge CARNES. If I said that, I didn’t mean to. My understanding 

of the results of the survey was that in a majority, perhaps a large 

majority of the 94 districts, it wasn’t used. But in some districts, 

it was used and they feel it is very effective and feel very strongly 

about it. 

Mr. SCOTT. If you are not using it in most of the country—is 

there an eighth amendment problem, so if you do not need it in 

most of the country, it would be excessive in the other parts of the 

country where it is used? 

Judge CARNES. Well, of course, you could look at it as it is not 

being used some places it is needed. I don’t know, and would like 

to know, but can’t——

Mr. SCOTT. I guess that is just a theoretical kind of question. 

Judge CARNES. I can’t tell you if the variations are because of the 

different mix of crimes. Some places are military base extensive 

and some aren’t, and you tend to have more domestic violent kinds 

of crimes there where you are trying to separate the defendant. I 

don’t know if that tracks the use of this or not. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Scott. 

We appear to be going into a second round of questions, so I will 

recognize the gentleman from Georgia, Mr. Barr, for additional 

questions, as well, and then we will go to the gentlewoman from 

Texas. 

Mr. BARR. Thank you, Mr. Chairman. 

I think that Mr. Scott was getting at a question that I was going 

to ask, also, and that is given the fact that we have this disparity 

among how the different districts, district courts, either use or 

don’t use condition performance bonds or condition bonds, do you 

see, Judge, any problem with any unequal protection or due process or what not in that different treatment? 

Judge CARNES. I really don’t, because I don’t think you are constitutionally entitled to the lowest common denominator of restrictions. One thing I would remind you of, and I don’t have the data 

on this and don’t pretend I do, but in some districts, there may be 

fewer releases because they are not using these conditions tied into 

the bond. 

We do have some anecdotal evidence from some of the magistrate 

judges that the defendants have actually urged them to put conditions on me and make it part of the bond because I want you to 

know I am going to obey those conditions. I promise you I will, and 

if you don’t believe me, make it a condition of my bond. The defendants, at least in those cases, think that the judge is more likely to 

release the defendant if he has that added assurance that the deVerDate Jan 17 2002 14:54 Dec 12, 2002 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\100802\82237.000 HJUD1 PsN: 82237
42

fendant is going to obey the conditions of release because of the 

bond being attached to it. It may be that fewer people are released 

in districts where they do not tie the conditions into the bond. I do 

not know. 

Mr. BARR. Mr. Verrochi, do you have a copy of this? 

Mr. VERROCHI. I just received it. 

Mr. BARR. The one page, the types of bonds set for defendants’ release. I think it is at the back of the Judge’s written statement. 

Mr. VERROCHI. I literally haven’t read it, sir. 

Mr. BARR. These are for 3 years, all post-Vacarro, 1999, 2000, 

and 2001. Just glancing at this, I am not quite sure what this tells 

us, if anything, other than just these are the numbers, and I am 

certainly sure they are accurate. Does it really tell us anything 

about the impact of Vacarro? 

Mr. VERROCHI. In the year 2001, for example, with 88,000 cases 

activated, only 21,000 defendants were released. I have to assume 

that that is less than 25 percent that were actually released on 

bail. If you look, 1,500 of them, roughly, were corporate surety, out 

of a total of 88,000 cases. So the real question becomes, is the Federal court using bail in a way that the presumption of innocence 

allows a defendant to be on the street and work with his attorney 

for his defense leading up to his trial. 

Judge CARNES. Could I clarify one thing about that table? 

Mr. BARR. I would, and also, Judge, if you could, how would 

these figures compare to pre-1995, in other words, pre-Vacarro decision figures? 

Judge CARNES. I don’t have the pre-1995. This is what the AO 

was able to put together on very short notice. But one thing I wanted to clarify is as the third asterisk—three-asterisk footnote indicates, these include only the defendants released at the initial detention or review hearing, not in any subsequent hearing in which 

the defendant may have been able to come up with more collateral 

or more persuasive arguments about release. So this is not a final 

release figure. 

Unfortunately, as you know, sometimes statistics aren’t kept for 

policy purpose. They are just kept for a variety of reasons, and 

sometimes because that is the way they have always been kept. We 

don’t have the statistics past the first detention or review hearing. 

Mr. BARR. So they would not be available even if the AO had 

more time to—— Judge CARNES. The AO is trying hard to get those figures. We 

were told, first of all, that it would take a week or two, and then 

it would take days. As I understand it, we are making every effort. 

John Rabiej has reminded me that the figures we have for 2001, 

which approach it from the end looking back, shows that 38,000 

folks were ultimately released. We don’t have these numbers broken down any further than they are broken down. But my understanding is, the actual number released hovers around 50 percent, 

take or give 6 percent. 

But you have got to remember, if you look in that report at the 

kind of cases we are talking about, 17 percent of them are immigration violation cases and there is no way the judge is going to 

release somebody who is in this country illegally to begin with. 

Forty percent of them are drug cases, serious drug cases to get into 

43

Federal court. So you have got nearly 60 percent where there is a 

pretty heavy presumption that you ought not to release the defendant based on the nature of the crime. 

Mr. BARR. Would it be possible, also, Judge, to go back and pull 

out similar statistics going back to the early 1990’s so we could see 

if there has been any statistical change after 1995? 

Judge CARNES. If it can be done, I am sure the AO will do it for 

us. I don’t know when they started breaking down these statistics, 

but I am sure we will get that if it is possible, or you will get a 

letter saying it is not possible. 

Mr. BARR. We would appreciate that. Thank you. 

Mr. SMITH. Thank you, Mr. Barr. 

The gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Judge Carnes, let me follow up on the line of questioning, very 

briefly, of the gentleman from Georgia. When you said 60 percent, 

the figure 60 percent of those individuals, those are not ones that 

are released. You are talking about——

Judge CARNES. No. 

Ms. JACKSON LEE [continuing]. Dangerous—all right. I want to 

move them away from our formula here. 

Judge CARNES. Input cases. 

Ms. JACKSON LEE. Obviously, you have the discretion to make 

the determination that there are obviously certain cases that are 

not within the bounds of the discussion that we are having here 

today. 

I say that because I wanted to highlight for the record out of 

your report, The United States Probation Pretrial Services System 

Year-End Report, where you note that of those defendants released 

pending trial in fiscal year 2001, and again, we are saying of those 

released, so we are not talking about the hardship or the cases of 

individuals with heinous crimes and other major crimes, the large 

majority, 94 percent, appeared in court as required and were not 

rearrested. 

Only 2 percent failed to appear for court proceedings and 2 percent each were revoked because they were either rearrested for a 

new felony charge or rearrested for a new misdemeanor. The release of 12 percent of defendants were revoked for technical violations of their release conditions. In these cases, a pretrial services 

officer before it reported to the court violations of conditions such 

as home confinement, refraining from drug or alcohol use, and 

travel conditions. 

So I think this goes to Mr. Verrochi to the extent of the conditions, and I think, Judge, what I see clashing here is the court’s 

discretion, which I am very sympathetic to and sensitive to, and 

the burden that falls on the innocent third party. So let me try to 

make an argument here using the eighth amendment, which specifically says excessive bail shall not be required. 

If I was to take the opposite, it would seem to say that then bail 

should be required and we should have the privileges of bail on the 

grounds of a single issue, and that is appearance. Conditions, I believe, are important and clearly should be included. I do think that 

the conditions might equate to onerous or excessive by way of the 

penalty that is going to fall on the third party. 

44

Let me move to Mr. Verrochi just to say, are you singly making 

the point about the onerousness or the burden on the innocent 

third party or are there other arguments that you are making in 

support of H.R. 2929? 

Mr. VERROCHI. Ma’am, I believe that a court can set any kind of 

a condition on a defendant in addition to a financial condition, that 

the financial condition is a guarantee, it is a leverage, it is financial handcuffs that help me and help the family to make the defendant appear. All of the other conditions, be it abstinence from 

drugs, alcohol, curfews, et cetera, all of those other conditions are 

laid upon the defendant only, and if the defendant violates those 

conditions, the defendant should pay the penalty of having his bail 

revoked. That is a fair and just action by the court, because the defendant could not adhere to the conditions. 

Ms. JACKSON LEE. And then he is rearrested or to come back into 

jail? 

Mr. VERROCHI. Yes, ma’am. 

Ms. JACKSON LEE. His freedom is extinguished. 

Mr. VERROCHI. He gives up his freedom because he violated the 

conditions. As long as he appears in court, I or his family should 

not have to give up our money, which is the guarantee of appearance. The conditions is a guarantee of behavior and that should be 

laid solely on the defendant. 

Ms. JACKSON LEE. I would almost think that you could stretch 

the eighth amendment to say that you were exercising cruel and 

unusual punishment against the bondsperson and the family by 

causing them to lose their financial stake when all they have done 

is tried to help a loved one, in most instances. 

Mr. VERROCHI. Yes, ma’am. 

Ms. JACKSON LEE. Would you accept that premise? 

Mr. VERROCHI. I will accept that premise and I will say to you 

that I truly don’t believe that family members understand the risk 

that they are running when they post cash or a home or something 

like that. They don’t understand that a violation of conditions could 

mean the loss of their money or their home. 

Ms. JACKSON LEE. Let me just say to Judge Carnes, you are 

doing a very able job of representing the Conference. I had the opportunity of being with the Just Beginning Foundation just a few 

weeks ago of Federal judges who happened to be African American 

judges and we discussed a lot of these issues. 

How would you respond to the point that is being made that you 

still have the power of withdrawing the freedom of the defendant 

if they violate the conditions. But if you have this added measure 

of punishment, you are not punishing the defendant, who has nothing. You are punishing the family members, and to a certain extent, some family members have lost their property or will lose 

their property if you revoke the bond. Could you respond to that, 

please? 

Judge CARNES. That is a good question, and my response is that 

the rule contemplates those kind of hardships and says, if it otherwise appears that justice does not require the forfeiture, the judge 

can set it aside or can remit part of it. But we are talking about 

innocent family members, but H.R. 2929 does not distinguish between innocent and guilty family members. I am telling you, we 

45

have cases all the time in drug cases, while Mom and Pop are sitting in the house, Junior is running a meth lab out in the barn and 

they know about it and they are not innocent and they could influence his behavior. 

The thought is of custodial sureties, which is often the family situation, or friends, that they are in a position to influence the behavior or to report it. I do not know any judge in the country, if 

someone came in and said, ‘‘I am sorry. I put up the bond for this, 

but he is dealing drugs again. I want off the bond,’’ and reported 

him, there is no judge in the country would forfeit that bond. Those 

people are in a position to be aware of, to attempt to influence the 

behavior, and to report it if they can’t change it. And if they can’t 

do that, that ought to be taken into account and set aside the forfeiture or remit part of the forfeiture. 

Ms. JACKSON LEE. Mr. Chairman, Judge Carnes has again ably 

responded. I would only say that it is a question of having the data 

to be able to support the representation, and certainly I believe in 

the integrity of the Federal court, but I think we are trying to address those instances where it falls through the cracks and innocent persons are harmed, and I believe that there is merit in the 

legislation. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

I will exercise a chair’s perogative here, and Mr. Verrochi, if you 

want to have equal time and respond to the question, as well, you 

are welcome to, and we will give you a minute to do so. 

Ms. JACKSON LEE. Thank you. 

Mr. VERROCHI. I think that, quite clearly, if the meth lab is out 

in the backyard, that the Federal prosecutor is going to start a civil 

forfeiture proceeding to forfeit that property because the family 

truly is involved. But I believe that in most instances, the family, 

particularly when it is Grandma or someone who is away from the 

local defendant, when that occurs, that more distant relative obviously should not suffer a penalty. They are the innocent third 

party. 

I go into a bail bond with my eyes open and I understand the 

risks which the judge is laying out for us, and the risks for me in 

the Federal court today are that I cannot write bail in the Federal 

court because I cannot guarantee the conduct of the defendant. I 

am willing, quite willing, to guarantee the appearance of the defendant. That is my job, and if he does not appear, I will make him 

appear, and if I can’t make him appear, then I will pay the forfeiture. 

Mr. SMITH. Thank you, Mr. Verrochi. 

I would like to thank all the Members for their presence and for 

their interest in the subject at hand. Judge Carnes, thank you for 

your testimony. Mr. Verrochi, thank you for yours, as well. It has 

been very enlightening and we appreciate what you had to say. 

The Subcommittee stands adjourned. 

[Whereupon, at 5:20 p.m., the Subcommittee was adjourned.] 

(47)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

This legislation restores the historical purpose of bail bonds to their original purpose. It grants judges the authority to declare bail bonds forfeited only when a defendant fails to appear before a court as ordered. 

The historical purpose of bail has always been to ensure that defendants physically appear before a court. In the past, bail bonds have been used only for this 

purpose. Recently, however, bail bonds have taken on a new purpose. Federal judges 

have now merged the purposes of bail and other conditions of release. This requires 

the Bail Agent to not only ensure the defendant’s presence at court but also his general good behavior. This puts on undue strain on the court system in general and 

the Bail Agents in particular. 

Judges are now ordering bonds forfeited in cases where the defendant actually appears before a court as ordered but fails to comply with some collateral condition 

of release. This is a misinterpretation of the purposes of bail bonds that must be 

addressed in order to correct the runaway costs of the system. 

This expansion of the purposes of the bail bonds has led to a breakdown in the 

system. The risk to the bail agent has increased, and the industry has been forced 

to adhere to strict underwriting guidelines. As a result, there is no longer a meaningful bail bond option. There is no incentive for people who have already had their 

bail bonds forfeited to appear before court, and so we have thousands of defendants 

failing to appear for court appearances. This vastly increases the expense and effort 

expended by Federal law enforcement officers. There is no need for this increase 

when we can very easily fix this problem by restoring the original purpose of bail 

bonds. 

This bi-partisan bill is a step worth considering to reform our judicial system. We 

must make the system more efficient so as to better provide swift justice to those 

going through the system.

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