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[House Report 115-659]
[From the U.S. Government Publishing Office]

115th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                      {      115-659

======================================================================

 
                  CITIZENS' RIGHT TO KNOW ACT OF 2018

                                _______
                                

 April 27, 2018.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2152]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2152) to require States and units of local 
government receiving funds under grant programs operated by the 
Department of Justice, which use such funds for pretrial 
services programs, to submit to the Attorney General a report 
relating to such program, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     6
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     7
Performance Goals and Objectives.................................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Dissenting Views.................................................     7

                             The Amendment

    The amendment is as follows:
  Strike all that follows after the enacting clause, and insert 
the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Citizens' Right to Know Act of 2018''.

SEC. 2. REPORTING REQUIREMENT FOR DEPARTMENT OF JUSTICE GRANT 
                    RECIPIENTS USING FUNDS FOR PRETRIAL SERVICES 
                    PROGRAMS.

  (a) In General.--For each fiscal year in which a State or unit of 
local government receives funds under any grant program operated by the 
Department of Justice, including the Edward Byrne Memorial Justice 
Assistance grant program under subpart I of part E of title I of the 
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et 
seq.), and which uses funds received under such program for a pretrial 
services program, the State or unit of local government shall submit to 
the Attorney General a report which contains the following:
          (1) The name of each defendant participating in a pretrial 
        release program administered by the pretrial services program, 
        and whether, as applicable, each occasion on which such 
        defendant failed to make an appearance.
          (2) Information relating to any prior convictions of each 
        defendant participating in the pretrial services program.
          (3) The amount of money allocated for the pretrial services 
        program.
  (b) Publication Requirement.--Subject to any applicable 
confidentiality requirements, the Attorney General shall, on an annual 
basis, make publicly available the information received under 
subsection (a).
  (c) Reduction in Funding.--The Attorney General shall, for State or 
unit of local government which fails to comply with the requirement 
under subsection (a) for a fiscal year, reduce the amount that the 
State or local government would otherwise receive under each grant 
program described in subsection (a) in the following fiscal year by 100 
percent.
  (d) Reallocation.--Amounts not allocated to a State or unit of local 
government under subsection (c) shall be reallocated under each such 
grant program to States and units of local government that comply with 
the requirement under subsection (a).
  (e) Definition.--The term ``failed to make an appearance'' means an 
action whereby any defendant has been charged with an offense before a 
court and who is participating in a pretrial release program for which 
funds received under a grant program referred to in subsection (a) are 
used as a condition of pretrial release--
          (1) does not appear for any court date regarding such charge;
          (2) does not appear for any one appointment with the pretrial 
        services program; or
          (3) does not appear for any post-release appearance the court 
        may require.

                          Purpose and Summary

    H.R. 2152 requires States and units of local government 
that receive funds under grant programs operated by the 
Department of Justice and use such funds for pretrial services 
programs to submit to the Attorney General a report relating to 
such programs.

                Background and Need for the Legislation

    Until the 1960s, the options for those defendants accused 
of a crime were release on one's own recognizance (ROR), 
commercial bail, or incarceration. The intent of commercial 
bail was to ensure the appearance of the defendant in court at 
no cost to the taxpayer. In 1961, the first U.S. pretrial 
services program, the Manhattan Bail Project, was established. 
A pretrial services program provides the bail-setting court 
with information and options to help the court make an informed 
pretrial release decision and may provide supervision of those 
released by the court with conditions. The program was designed 
to help defendants who were unable to post the financial surety 
bond conditions set in New York City. The program interviewed 
defendants to gather information on community ties to determine 
a defendant's likelihood of appearing in court. Based on these 
interviews, low-risk individuals were recommended for release 
on their own recognizance, or the defendants' promise to appear 
without financial obligation.
    However, over the last four decades, pre-trial release 
programs have expanded well beyond their original scope and 
purpose. Today, there are over 300 pre-trial release programs 
nationwide whose participants routinely include violent and 
repeat offenders, many of whom are able to post a commercial 
bond and have done so in the past. In many instances, the 
federal government has become a major source of funding for 
pre-trial release programs.
    H.R. 2152 responds to this development by requiring that 
the Attorney General, on an annual basis, submit a report to 
Congress containing the name of each defendant participating in 
a pretrial release program administered by a pretrial services 
program, each occasion on which such defendant failed to make 
an appearance, and information relating to the previous arrest 
record of each defendant participating in the pretrial services 
program. If a jurisdiction fails to produce a report in a given 
fiscal year, the jurisdiction will lose part of its grant 
funding for the following fiscal year. The purpose of this 
report is to ensure Congress, and the citizens it represents, 
know what types of defendants are being released prior to trial 
using federal taxpayers' dollars, and whether their communities 
are running successful pretrial services programs.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
2152.

                        Committee Consideration

    On March 7, 2018, the Committee met in open session and 
ordered the bill (H.R. 2152) favorably reported, with an 
amendment, by a roll call vote of 14 to 10, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 2152.
    1. An amendment offered by Mr. Cicilline to change the 
reporting requirements of States or units of local government 
that receive grants for pre-trial services was defeated by a 
roll call vote of 9 to 11.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
Mr. Rutherford (FL)............................
Ms. Handel (GA)................................              X
 
Mr. Nadler (NY), Ranking Member................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
Ms. Demings (FL)...............................
                                                ------------------------
    Total......................................      9      11
------------------------------------------------------------------------

    2. Motion to report H.R. 2152, as amended, favorably to the 
House. Approved 14 to 10.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................
Ms. Roby (AL)..................................
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
Mr. Rutherford (FL)............................
Ms. Handel (GA)................................      X
 
Mr. Nadler (NY), Ranking Member................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
Ms. Demings (FL)...............................              X
                                                ------------------------
    Total......................................     14      10
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to H.R. 2152, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:
                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 5, 2018.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2152, the 
Citizens' Right to Know Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                                        Keith Hall.
Enclosure
        cc: Honorable Jerrold Nadler
            Ranking Member

             H.R. 2152--Citizens' Right to Know Act of 2018

As ordered reported by the House Committee on the Judiciary on March 7, 
                                  2018

    H.R. 2152 would require states and localities that receive 
grants from the Department of Justice (DOJ) for programs that 
provide pretrial services to report to DOJ about those 
programs. The bill also would direct DOJ to publish the data 
annually, including prior convictions of program participants 
and amounts spent on the programs.
    Using information from DOJ, CBO estimates that implementing 
the bill's provisions would cost the department less than 
$500,000 each year; such spending would be subject to the 
availability of appropriated funds.
    Enacting H.R. 2152 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 2152 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 2152 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 2152 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee finds that H.R. 2152 contains no directed 
rule making within the meaning of 5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, the Committee states that H.R. 2152 
would require States and units of local government that receive 
funds under grant programs operated by the Department of 
Justice, and use such funds for pretrial services programs to 
submit to the Attorney General a report relating to such 
programs.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2152 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short title. Section 1 sets forth the short 
title of the bill as the ``Citizens Right to Know Act of 
2018.''
    Sec. 2. Reporting requirement for Department of Justice 
grant recipients using funds for pretrial services programs. 
Section 2 requires a state or local government that receives 
funds under a Department of Justice (DOJ) grant program and 
uses such funds for a pretrial services program to annually 
report the amount of funds received by the pretrial services 
program and certain information about participating defendants. 
DOJ must publish the information. Additionally, DOJ must reduce 
the grant allocation of a state or local government that fails 
to comply.

                            Dissenting Views

    We support fostering greater transparency in the operation 
of our criminal justice system, but H.R. 2152, the ``Citizens' 
Right to Know Act,'' does not facilitate this goal. Rather, it 
undermines the privacy rights of Americans and fails to address 
the fundamental flaws with our Nation's money bail system. The 
bill would: (1) require a unit of state or local government 
that uses U.S. Department of Justice (DOJ) grant funding to pay 
for pretrial services programs to report annually certain 
information to the DOJ about defendants who participate in such 
programs; (2) mandate that this information be published by the 
DOJ; and (3) impose a 100% reduction in the DOJ grant 
allocation for any state or local government that fails to 
comply. In sum, these directives would not further transparency 
because the information the bill requires to be provided would 
be incomplete and could be used to displace pretrial services 
programs in favor of the money bail system, which disparately 
impacts the poor and most vulnerable in our society. And, the 
bill would undermine the privacy rights of those who 
participate in pretrial service programs. Therefore, we cannot 
support this legislation.
    Pretrial services programs are publicly-funded operations 
that gather information about defendants awaiting bail hearings 
and provide supervision of defendants who have been released 
with specific conditions. Before pretrial services programs 
were instituted, courts primarily relied on the money bail 
system to determine which defendants were eligible for release. 
Money bail systems allow defendants to be released before trial 
if they can pay a monetary amount set by the judge.
    Increasingly, money bail systems have come under criticism 
for being unfair, unsafe, and expensive. A determination of 
eligibility for release from incarceration based on financial 
means disadvantages people who lack those resources. People who 
are unable to pay their bail remain in custody until their 
scheduled court dates, which can be months, if not years in the 
future. A recent study conducted by the Bureau of Justices 
Statistics found that 65% of the inmates detained in jails were 
awaiting court action on a charge.\1\ Not only is it inherently 
unfair to keep people in custody based solely on their 
financial means, but it also unfairly perpetuates their poverty 
by preventing them from working, paying rent, and providing for 
their families.\2\
---------------------------------------------------------------------------
    \1\Jail Inmates in 2016, Bureau of Justice Statistics (2018).
    \2\Pretrial Integrity and Safety Act, H.R. 4019, 115th Cong. 
Sec. 2(b)(4) (2017).
---------------------------------------------------------------------------
    Despite the popularity and success of pretrial services 
programs, lobbying efforts have limited their implementation on 
the state level. In fact, legislation similar to H.R. 2152 has 
made its way through state legislatures in the past, supported 
by the American Legislative Exchange Council (ALEC), a 
conservative special interest group that works with state 
lawmakers and represents bail bondsmen.\3\ This group has 
helped facilitate the passage of nearly identical legislation 
in states, such as Florida and Texas, designed to displace 
pretrial services programs by imposing administrative burdens 
upon them.
---------------------------------------------------------------------------
    \3\Facts and Positions: The Truth about Commercial Bail Bonding in 
America, the National Association of Pretrial Services Agencies 
Advocacy Brief (2009).
---------------------------------------------------------------------------
    H.R. 2152, as amended by the substitute amendment offered 
by Chairman Goodlatte (R-VA), would require state or local 
governments that use federal funding under any grant program 
operated by the DOJ to fund a pretrial services program to 
annually submit a report to the Attorney General to include 
such information as the name of each defendant participating in 
the program and each occasion the defendant failed to make an 
appearance, information relating to the prior convictions of 
the defendant, and the amount of money allocated for the 
program. The bill would require the Attorney General to publish 
this information on an annual basis.
    As explained by the American Civil Liberties Union in their 
letter to the Committee opposing the bill, the required 
reporting of this information raises privacy concerns: ``We are 
troubled that the Citizens' Right to Know Act would collect and 
publicly report personally identifiable information of 
individuals participating in pretrial services programs--
individuals who have not been convicted of a crime given their 
pretrial status.''\4\ Although the Committee adopted an 
amendment offered by Representative David Cicilline (D-RI) to 
eliminate the requirement that arrest information for each 
defendant be reported, we believe the bill continues to raise 
privacy concerns.
---------------------------------------------------------------------------
    \4\Letter from Faiz Shakir & Kanya Bennett, the American Civil 
Liberties Union, to Chairman Bob Goodlatte & Ranking Member Jerrold 
Nadler, H. Comm. on the Judiciary (Mar. 7, 2018).
---------------------------------------------------------------------------
    To address these concerns, and to require the reporting of 
information that would actually help the public evaluate the 
efficacy of these programs and money bail systems, 
Representative Cicilline and Ranking Member Sheila Jackson Lee 
(D-TX) of the Subcommittee on Crime, Terrorism, Homeland 
Security, and Investigations offered an amendment to replace 
the categories of information required to be reported with the 
following aggregated information:

          (1) Of the total number of defendants who appeared at 
        an initial bail hearing, the percentage of such 
        defendants who were released on their own recognizance.
          (2) Of the total number of defendants who appeared at 
        an initial bail hearing, the percentage of such 
        defendants who participated in a pretrial release 
        program administered by the pretrial services program, 
        without financial obligations imposed as a condition of 
        their release.
          (3) Of the total number of defendants who appeared at 
        an initial bail hearing, the percentage of such 
        defendants who were released on monetary bail, and who 
        completed the pretrial period without being arrested 
        for a subsequent unrelated offense.
          (4) Of the total number of defendants who were 
        released on monetary bail, the percentage of such 
        defendants who completed the pretrial period without 
        having a bench warrant issued for a failure to appear.
          (5) Of the total number of defendants participating 
        in the pretrial services program, the percentage of 
        such defendants who completed the pretrial period 
        without being arrested for a subsequent unrelated 
        offense.
          (6) Of the total number of defendants participating 
        in the pretrial services program, the percentage of 
        such defendants who completed the pretrial period 
        without having a bench warrant issued for a failure to 
        appear. Had this bill actually been intended to obtain 
        information to help us better understand the various 
        approaches to pretrial release, the Majority would have 
        supported this amendment, which unfortunately was 
        defeated by a vote of 9 Democrats to 11 Republicans.
    We are also concerned that H.R. 2152 will unduly burden 
state and local governments. In particular, the bill would 
impose an unnecessarily punitive penalty of a 100% reduction in 
the funding received from the relevant DOJ program if the state 
or local government does not comply with the bill's reporting 
requirement. Representative Cicilline offered an amendment that 
would have replaced this provision with one that would have 
reduced funding based on a pro rata share of the placement cost 
of each defendant not reported. This amendment was defeated by 
voice vote.
    The bill could further burden state and local governments 
by creating redundancy in reporting requirements in states and 
localities that already have laws requiring the release of the 
information directed to be reported under the bill. 
Representative Pramila Jayapal (D-WA) offered an amendment to 
prevent states and localities from being forced to issue 
unnecessary and duplicative reports where they already have 
similar reporting requirements in effect. This commonsense 
amendment was defeated by voice vote.
    Perhaps the bill's greatest shortcoming is that it fails to 
address the fundamental injustices that result from the money 
bail system. Instead of adopting this flawed bill, the 
Committee should be examining pretrial services and bail issues 
with the goal of reforming our Nation's bail system, not for 
the purpose of protecting the use of money bail. In fact, 
thoughtful legislation has already been introduced in this 
Congress, including H.R. 1437, the ``No Money Bail Act,'' which 
would incentivize states to eliminate the payment of money as a 
condition of release in criminal cases within three years.\5\ 
The author of that bill, Representative Ted Lieu (D-CA), 
submitted a statement for the record, asking that the Committee 
work with him ``to reform this inherently unfair and unjust 
system to ensure that no American is detained before pretrial 
solely because he or she cannot afford bail.''\6\ In an effort 
to focus the Committee on legislation that would be more worthy 
of consideration, Ranking Member Jerrold Nadler offered an 
amendment based on H.R. 1437, which he withdrew after 
discussing its merits and calling for the Committee to work to 
eliminate money bail.
---------------------------------------------------------------------------
    \5\H.R. 1437, 115th Cong. (2017).
    \6\Rep. Ted Lieu, Statement for the Record for House Judiciary 
Committee Markup of H.R. 2152 (Mar. 7, 2018).
---------------------------------------------------------------------------
    Incarcerating people because they cannot afford to pay bail 
is unjust. Money bail is unfair to the indigent, unproductive, 
and expensive for American taxpayers. Unfortunately, H.R. 2152 
appears to be intended to perpetuate this practice. Because of 
our concerns about the operation and impact of this measure, 
and because the bill fails to reform the system of money bail 
used by many jurisdictions in this country, we oppose H.R. 2152 
and must respectfully dissent.

                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Lieu.
                                   Ms. Jayapal.
                                   Mr. Raskin.
                                   Ms. Demings.

                                  [all]
```