RULES 528 AND 535 - USE OF BAIL MONEY FOR PAYMENT OF RESTITUTIONS, FEES, FINES, AND 

COSTS Final Report: 12/08/2014 -1-

FINAL REPORT1

Proposed Amendments to Pa.Rs.Crim.P. 528 and 535

USE OF BAIL MONEY FOR PAYMENT OF RESTITUTION, FEES, FINES, AND 

COSTS

On December 8, 2014, effective February 9, 2015, upon the recommendation of

the Criminal Procedural Rules Committee, the Court amended Rule 528 (Monetary 

Condition for Release of Bail) and Rule 535 (Receipt for Deposit; Return of Deposit) to 

provide (1) procedures for applying bail monies that would be returnable to the 

defendant after full and final disposition of the case to the defendant’s outstanding 

restitution, court fees, fine, and costs in the current case and (2) notice to depositors to 

warn of the possibility of the loss of security deposited.

The Committee had examined procedures that would permit retention of a 

defendant’s bail money that otherwise would be returnable to the defendant after full 

and final disposition of the case in order for it to be applied to the defendant’s 

outstanding restitution, court fees, fine, and costs. The Rules of Criminal Procedure 

traditionally have precluded directly applying bail money in this manner, based on the 

concept that the purpose of bail is to ensure the presence of the defendant during the 

pendency of the case and not to obtain a “deposit” on future assessments. However, 

the Committee concluded that a change that would permit the retention of returnable 

bail money to satisfy a defendant’s existing obligations to the court is a valid exercise of 

the rule-making authority. In addition, such a change is a potentially useful tool for the 

more efficient collection of owed moneys, including restitution, reducing collection costs 

for the court and even for the defendant who would otherwise face additional costs 

where the court is forced to seek collections processes.

 

1

The Committee's Final Reports should not be confused with the official Committee 

Comments to the rules. Also note that the Supreme Court does not adopt the 

Committee's Comments or the contents of the Committee's explanatory Final Reports.
RULES 528 AND 535 - USE OF BAIL MONEY FOR PAYMENT OF RESTITUTIONS, FEES, FINES, AND 

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In reaching this conclusion, the first question that the Committee had considered 

was whether distribution of bail money in this manner fell within the purview of the Rules 

of Criminal Procedures. As part of this review, the Committee examined the current law 

in Pennsylvania on the return of bail, as well as the practice in other jurisdictions with 

regard to this question.

Under the common law, the purpose of bail was to ensure the appearance of the 

defendant and courts did not have the inherent power to apply bail money for another 

purpose. In terms of constitutional concerns, the Eight Amendment of U.S. Constitution 

prohibits excessive bail. A U.S. Supreme Court case, Cohen v. United States, 7 L.Ed. 

518, 82 S.Ct. 526 (1962), held that conditioning bail on the payment of a fine is 

excessive and in violation of the Eighth Amendment. 

Several decades after the Cohen decision, a federal statute, 28 U.S.C. §2044, 

was adopted that permitted the use of deposited bail money to be applied to a 

defendant’s costs, fines, restitution and other assessments. Constitutional challenges to 

this provision have been rejected because, unlike the Cohen case, Section 2044 does 

not precondition bail on the payment of any fine but rather is a procedural mechanism 

by which the court, after the defendant has appeared and the purpose of bail has been 

served, may disburse deposited money to those with claims on the funds. See United 

States v Higgins, 987 F.2d 543 (1993). 

The Committee’s research revealed that, in many states, courts have allowed the 

application of bail to fines or costs. Numerous states also have adopted statutes 

authorizing this practice. See, e.g., California Penal Code §1297, Florida Statutes 

Annotated §903.286, Illinois Complied Statutes §5/110-7(f), Minnesota Statutes 

Annotated §629.53, Nevada Revised Statutes §178.522, New York Criminal Procedure 

Law §420.10(1)(e), Tennessee Code §40-11-121, Wisconsin Statutes §969.03(4). In 

instances where specific statutory authority existed, courts have been inclined to allow 

the application of the bail to fines or costs. For example, in State v. Iglesias, 185 Wis. 

2d 118, 517 N.W.2d 175 (1990), cert. den. 513 U.S. 1045 (1994), the Wisconsin 

Supreme Court found that bail is not excessive if it is used for a purpose which the 
RULES 528 AND 535 - USE OF BAIL MONEY FOR PAYMENT OF RESTITUTIONS, FEES, FINES, AND 

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legislature has deemed to be a compelling state interest and the amount is not 

excessive relative to the interest sought to be furthered. 

Rather uniquely, Pennsylvania’s Bail Statute delegates all authority over bail to 

the Supreme Court through its rule-making authority. Section 5702 of the Judicial 

Code, 42 Pa.C.S. §5702, provides:

Except as otherwise provided by this title and the laws relating to the 

regulation of surety companies, all matters relating to the fixing, posting, 

forfeiting, exoneration and distribution of bail and recognizances shall be 

governed by general rules. 

While there are no Pennsylvania cases addressing the propriety of retaining 

returnable bail money for payment of fines, costs, or restitution, there have been a few 

cases that dealt with certain aspects of this issue, usually involving cases in which third 

parties were seeking the return of money they had posted on behalf of a defendant. For 

example, in Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978), the Court 

held that the trial court erred in refusing to return the bail deposit after the defendant 

was taken into custody after allegedly committing a new offense, concluding that the 

bail was revoked when the defendant was placed in custody, and the trial court no 

longer had the authority to retain it. The Court specifically reserved judgment on the 

question of “whether and to what extent the Rules of Criminal Procedure allow bail 

deposits to be applied to the collection of fines imposed upon the defendant.” FN. 5, 

476 Pa. at 222, 382 A.2d. at 126.

Based on the foregoing analysis, the Committee initially developed a proposal, 

which was published for comment at 42 Pa.B. 6253 (October 6, 2012), that would have 

amended Rule 535 and revised the Comment to Rule 528 to permit the clerk of courts 

to automatically apply any bail monies that otherwise would be returnable to the 

defendant after full and final disposition of the case to any of the defendant’s 

outstanding restitution, court fees, fines, costs, and bail judgments. The proposal would 

have been limited to only money that has been deposited by the defendant and would 

have permitted relief where its application would work a hardship on the defendant. 

Following publication of this proposal, the Committee received further direction 

from the Supreme Court of Pennsylvania to narrow the scope of the proposal by 
RULES 528 AND 535 - USE OF BAIL MONEY FOR PAYMENT OF RESTITUTIONS, FEES, FINES, AND 

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requiring the prosecution to make a motion for holding deposited funds for payment of 

outstanding restitution, fees, fines, and costs assessed in the case for which the deposit 

had originally been made. Additionally, the exemption for third party sureties and for

cases in which the defendant would suffer an undue hardship were to be more explicitly 

stated and fuller notice be provided to the depositor of the potential loss of the deposit.

The amendments therefore now afford enhanced protection to third party 

depositors by requiring detailed notice that the bail authority must provide to depositors 

to warn them of the possibility of the loss of security deposited if they allow the 

defendant to be the named depositor. Rule 528 has been amended to move into the 

rule text the language currently in the Comment that describes the manner by which a 

depositor may be named and the consequences for a third party of allowing the 

defendant to be named depositor when the third party has supplied the bail money, 

including the possibility of the money being applied to assessments. This notice 

requirement is reiterated in Rule 535(B). 

Additionally, a new paragraph (E) has been added to Rule 535 that establishes

the procedures for retaining the bail money. A motion by the attorney for the 

Commonwealth is required before the bail money can be retained and can only be 

retained for the payment of assessments placed on the case for which the money had 

originally been deposited with the defendant being the named depositor. The 

paragraph also contains the exemption when the defendant shows that retention of the 

bail money would be a hardship.

Additionally, the current paragraph (A)(4) of Rule 535 that prohibits inquiring 

whether the defendant consents to applying deposited bail money towards fines, costs, 

etc. has been removed because the defendant’s consent to having the bail money 

retained is no longer needed if the defendant was the named depositor and third party 

depositors are to be provided with more detailed notice of the potential consequences. 

The Comment to Rule 535 has been revised to describe the rationale and basis 

for this change as well as cross-referencing the Court’s Uniform Disbursement 

Schedule that details the manner in which the retained money would be dispersed. The 
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Comment also states that the new procedures would not apply to cases before a 

magisterial district judge unless the parties agree. 

There was a concern raised by the Committee that some counties may be 

retaining bail presently, despite being contrary to the rules, so language has been 

added in the Rule 535 Comment that any local practice that varies from that in Rule 535 

is inconsistent with the statewide rules.