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BAIL BOND FAIRNESS ACT OF 2007 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2286 

JUNE 7, 2007 

Serial No. 110–105 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ 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 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 7, 2007 

Page 

THE BILL 

H.R. 2286, the ‘‘Bail Bond Fairness Act of 2007’’ .................................................. 2 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 6 

The Honorable J. Randy Forbes, a Representative in Congress from the 

State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 7 

WITNESSES 

The Honorable Robert Wexler, a Representative in Congress from the State 

of Florida 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 16 

The Honorable Ric Keller, a Representative in Congress from the State of 

Florida 

Oral Testimony ..................................................................................................... 17 

Ms. Linda Braswell, MCBA, Braswell Surety Services, Inc., Stuart, FL 

Oral Testimony ..................................................................................................... 19 

Prepared Statement ............................................................................................. 21 

The Honorable Tommy E. Miller, United States District Court, Eastern Virginia 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Letter from Richard A. Hertling, Principal Deputy Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice ........................ 8 

Prepared Statement of the Honorable Ted Poe, a Representative in Congress 

from the State of Texas ....................................................................................... 10 

Prepared Statement of Edward G. Gallagher, The Surety & Fidelity Association of America ..................................................................................................... 57 

Prepared Statement of Armando Roche, MCBA, Past President, Professional 

Bail Agents of the United States ........................................................................ 60 

(1) 

BAIL BOND FAIRNESS ACT OF 2007 

THURSDAY, JUNE 7, 2007 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Robert 

C. ‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Delahunt, Forbes, Sensenbrenner, Coble, and Lungren. 

Staff Present: Bobby Vassar, Chief Counsel; Ameer Gopalani, 

Majority Counsel; Veronica Eligan, Professional Staff Member; 

Caroline Lynch, Minority Counsel; and Allison Beach, Minority 

Counsel. 

Mr. SCOTT. The Subcommittee will now come to order. 

And I am pleased to welcome you to the hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on H.R. 

2286, the ‘‘Bail Bond Fairness Act of 2007.’’ 

[The bill, H.R. 2286, follows:] 

2 

1

I 

110TH CONGRESS 

1ST SESSION H. R. 2286

To amend title 18, United States Code, and the Federal Rules of Criminal 

Procedure with respect to bail bond forfeitures. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 10, 2007

Mr. WEXLER (for himself, Mr. KELLER of Florida, Mr. SENSENBRENNER, Ms. 

CASTOR, Mr. POE, Mr. LARSON of Connecticut, and Mr. WALBERG) introduced the following bill; which was referred to the Committee on the 

Judiciary 

A BILL

To amend title 18, United States Code, and the Federal 

Rules of Criminal Procedure with respect to bail bond 

forfeitures.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Bail Bond Fairness 

5 Act of 2007’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—The Congress makes the following 

8 findings: 


HR2286.AAB
3 

2

•HR 2286 IH

1 (1) Historically, the sole purpose of bail in the 

2 United States was to ensure the defendant’s physical 

3 presence before a court. The bail bond would be de4 clared forfeited only when the defendant actually 

5 failed to appear as ordered. Violations of other, col6 lateral conditions of release might cause release to 

7 be revoked, but would not cause the bond to be for8 feited. This historical basis of bail bonds best served 

9 the interests of the Federal criminal justice system. 

10 (2) Currently, however, Federal judges have 

11 merged the purposes of bail and other conditions of 

12 release. These judges now order bonds forfeited in 

13 cases in which the defendant actually appears as or14 dered but he fails to comply with some collateral 

15 condition of release. The judges rely on Federal Rule 

16 of Criminal Procedure 46(f) as authority to do so. 

17 (3) Federal Rule of Criminal Procedure 46(e) 

18 has withstood repeated court challenges. In cases 

19 such as United States v. Vaccaro, 51 F.3d 189 (9th 

20 Cir. 1995), the rule has been held to authorize Fed21 eral courts specifically to order bonds forfeited for 

22 violation of collateral conditions of release and not 

23 simply for failure to appear. Moreover, the Federal 

24 courts have continued to uphold and expand the rule 

25 because they find no evidence of congressional intent 


HR2286.AAC
4 

3

•HR 2286 IH

1 to the contrary, specifically finding that the provi2 sions of the Bail Bond Act of 1984 were not in3 tended to supersede the rule. 

4 (4) As a result, the underwriting of bonds for 

5 Federal defendants has become virtually impossible. 

6 Where once the bail agent was simply ensuring the 

7 defendant’s physical presence, the bail agent now 

8 must guarantee the defendant’s general good behav9 ior. Insofar as the risk for the bail agent has greatly 

10 increased, the industry has been forced to adhere to 

11 strict underwriting guidelines, in most cases requir12 ing full collateral. Consequently, the Federal crimi13 nal justice system has been deprived of any mean14 ingful bail bond option. 

15 (b) PURPOSES.—The purposes of this Act are—

16 (1) to restore bail bonds to their historical ori17 gin as a means solely to ensure the defendant’s 

18 physical presence before a court; and 

19 (2) to grant judges the authority to declare bail 

20 bonds forfeited only where the defendant actually 

21 fails to appear physically before a court as ordered 

22 and not where the defendant violates some other col23 lateral condition of release. 


HR2286.AAD
5 

4

•HR 2286 IH

1 SEC. 3. FAIRNESS IN BAIL BOND FORFEITURE. 

2 (a)(1) Section 3146(d) of title 18, United States 

3 Code, is amended by inserting at the end ‘‘The judicial 

4 officer may not declare forfeited a bail bond for violation 

5 of a release condition set forth in clauses (i)–(xi), (xiii), 

6 or (xiv) of section 3142(c)(1)(B).’’. 

7 (2) Section 3148(a) of title 18, United States Code, 

8 is amended by inserting at the end ‘‘Forfeiture of a bail 

9 bond executed under clause (xii) of section 3142(c)(1)(B) 

10 is not an available sanction under this section and such 

11 forfeiture may be declared only pursuant to section 

12 3146.’’. 

13 (b) Rule 46(f)(1) of the Federal Rules of Criminal 

14 Procedure is amended by striking ‘‘a condition of the bond 

15 is breached’’ and inserting ‘‘the defendant fails to appear 

16 physically before the court’’.

Æ


HR2286.AAE
6 

Mr. SCOTT. I recognize myself for 5 minutes for the purpose of 

making an introductory statement. 

Representatives Wexler and Keller introduced H.R. 2286 on May 

10 of this year, and the legislation is largely based on other bipartisan bills introduced in the previous three Congresses. 

Historically, bail has been issued for the sole purpose of ensuring 

a defendant’s appearance in court as ordered. In recent years, however, Federal judges have ordered bail bonds forfeited when defendants violated even collateral conditions of pretrial release. Judges 

and opponents of 2286 cite several reasons supporting the practice 

for ordering bond forfeiture when the defendant violates any condition of pretrial release. 

First, they maintain that the potential for bond forfeiture is an 

added incentive for defendants on pretrial release to comply with 

bail bond conditions, particularly when the forfeiture would mean 

loss of assets for family or friends. Without this added incentive, 

proponents maintain that judges would be less apt to grant pretrial 

release and, consequently, more defendants would actually remain 

in pretrial detention. 

Second, opponents find that the actual forfeiture of bond for violating collateral pretrial release is rare. 

Third, some Federal judges allow defendants to deposit their own 

funds as bonds in amounts that would be equal to the premium 

that a commercial bail bond underwriter would charge, making 

commercial bail bond underwriters unnecessary, which is the actual reason for the decline in commercial bond underwriting in the 

Federal system. 

Finally, opponents find that the direct change to the Federal 

rules circumvents the process that Congress established by empowering the judiciary to be governed by the Federal rules of criminal 

procedure. 

In contrast, supporters of the bill maintain that this practice has 

created a barrier to pretrial release because the risk of bond forfeiture has forced commercial bond underwriters to avoid the Federal system. They find that the commercial bond underwriters opt 

to offer their services to defendants in the State systems where the 

risk of loss is lower. 

Opponents find that friends and family of defendants are similarly reticent to post bond for defendants because they cannot risk 

their homes or their life savings not only on the appearance, but 

also on the good behavior of their loved one. 

Supporters of H.R. 2286 also state that bond forfeiture based on 

violations of collateral conditions is unreasonable. They assert that 

while the commercial underwriter or family or friend may be able 

to compel a defendant to appear, they have no control over the defendant’s personal activity. 

In essence, they maintain that the practice is unnecessary because the judges have a remedy to ensure compliance with bail conditions, namely ordering a pretrial defendant to detention if the defendant violates those conditions. Thus, ordering the bond forfeiture is simply a burden on the bond underwriter, not on the defendant. 

Finally, supporters maintain that pretrial release is a vital part 

of one’s ability to assist in his or her defense, as they contend that 

7 

bond forfeiture is an unreasonable and unnecessary barrier to pretrial release. They find that the practice is fundamentally unfair. 

H.R. 2286 would return the use of bail bonds to their historic 

purpose by limiting the judges’ authority to order a bond forfeiture 

due to a defendant’s failure to appear physically in order. The bill 

does, however, preserve a judge’s authority to revoke pretrial release and order pretrial custody, should the defendant violate any 

of the conditions of pretrial release. 

Now that being said, it is my pleasure to recognize the Ranking 

Member of the Subcommittee, my colleague from Virginia, the Honorable Randy Forbes, who represents Virginia’s Fourth Congressional District. 

Mr. FORBES. Thank you, Chairman Scott, and I appreciate you 

holding this legislative hearing on H.R. 2286, the Bail Bond Fairness Act of 2007. 

H.R. 2286 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 

comply with other conditions, including requirements that the defendant refrain from traveling out of the jurisdiction, stay away 

from a victim, witnesses or a victim’s neighborhood or that the defendant not violate any other laws. 

There are two fundamental issues that we need to examine. 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. 

And if the answer to the first question is that Federal judges 

have forfeited a bond for violations of conditions of release, then 

the second issue is whether existing law provides a remedy for that 

or whether the law should be changed to prohibit Federal judges 

from ordering such forfeiture. 

The Crime Subcommittee has held hearings on this issue in 2002 

and 1998, and I am glad that we are taking another look at the 

issue to see if circumstances have changed and what possible steps 

Congress may need to take. 

I want to commend my Judiciary Committee colleagues, Congressman Wexler and Congressman Keller, for their leadership on 

this issue, and I look forward to hearing from them and the other 

witnesses today. 

And, Mr. Chairman, before I yield back my time, I would request 

unanimous consent to insert in the record a letter dated June 6, 

2007, from the Deputy Assistant Attorney General, Department of 

Justice, on this matter, and also testimony offered by Congressman 

Ted Poe dated June 7, 2007. 

Mr. SCOTT. Without objection, the statements will be received for 

the record. 

[The information referred to follows:] 

8 

LETTER FROM RICHARD A. HERTLING, PRINCIPAL DEPUTY ASSISTANT ATTORNEY

GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE


A-1.eps
9 


A-2.eps
10 

PREPARED STATEMENT OF THE HONORABLE TED POE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS


B-1.eps
11 


B-2.eps
12 


B-3.eps
13 


B-4.eps
14 

Mr. FORBES. And, Mr. Chairman, I yield back the balance of my 

time. 

Mr. SCOTT. The gentleman yields back. 

Are there other statements? 

We will now go to the witnesses. We have a distinguished panel 

of witnesses here today to help us consider the important issue before us. 

Our first witness will be the gentleman from Florida, Robert 

Wexler, who represents the 19th Congressional District of Florida. 

Serving his sixth term in Congress, he is a Member of the Foreign 

Affairs Committee where he Chairs the Europe Subcommittee. He 

is also a Member of the Financial Services Committee and the Judiciary Committee. As part of his work on judiciary-related issues, 

he co-founded the Caucus on Intellectual Property, Promotion and 

Piracy Prevention. 

Prior to coming to Congress, he served in the Florida Senate for 

6 years. He holds a B.A. in political science from the University of 

Florida, a law degree from George Washington University. 

Our second witness is the gentleman from Florida, Ric Keller, 

who represents the Eighth Congressional District of Florida. Serving his fourth term, he is a Member of the Education and Labor 

Committee where he serves as the Ranking Member on the Subcommittee on Higher Education. He is also a Member of the Judiciary Committee where he is a strong advocate of the COPS program, the Community Oriented Policing Services program, to put 

more law enforcement officers on our streets. 

He was raised in Orlando, Florida, a graduate of East Tennessee 

State University where he graduated first in his class. He received 

his law degree from Vanderbilt University. 

Our third witness is Ms. Linda Braswell. She is currently the 

president of the Professional Bail Agents of the United States. 

She is a master certified bail agent and has been licensed as a 

bail bond agent for more than 30 years. In fact, when she obtained 

her license back in 1974, she enjoyed the distinction of serving as 

the youngest ever licensed female bail agent in the state of Florida 

at that time. 

She has been a board member of the Professional Bail Agents of 

the United States since 1990 and is a past President of the Florida 

Surety Agents Association. In 1995, she was inducted to the Professional Bail Agents of the United States Hall of Fame. She received 

a distinguished honor as the 2003 Bail Agent of the Year. 

She has also served on the Florida Department of Insurance Bail 

Bond Blue Ribbon Panel and is a certified Florida prelicensing instructor, certified Florida continuing education instructor and a 

certified bail agents program instructor. 

Our final witness is the Honorable Tommy Miller, magistrate 

judge for the United States District Court in the Eastern District 

of Virginia. He has served in that capacity since 1987, having previously served as an assistant U.S. attorney and assistant commonwealth attorney for the City of Norfolk. He is the past president 

of the Federal Magistrates Association and has served as a member 

of the Judicial Conference Advisory Committee on Criminal Rules. 

He attended the University of Virginia and obtained his law degree from William and Mary Law School. 

15 

Each witness’s written statement will be made part of the record 

in its entirety. 

I would ask that each witness summarize his or her testimony 

in 5 minutes or less. And to help you stay within that time, there 

is a timing device on your table. When you have 1 minute left, the 

light will switch from green to yellow and, finally, to red when your 

5 minutes are up. 

With that, we will begin the testimony with the gentleman from 

Florida. 

TESTIMONY OF THE HONORABLE ROBERT WEXLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. WEXLER. First, thank you, Chairman Scott, thank you, 

Ranking Member Forbes, Members of the Subcommittee, for giving 

me the privilege of testifying in support of H.R. 2286. 

Since its first introduction in the 105th Congress, this bill has 

enjoyed bipartisan support. And I am quite pleased to join my Florida colleague, Congressman Keller, who has been a leader on this 

issue for several years. 

Essentially, this bill seeks to restore realistic expectations for the 

Federal bail bond system, which was disturbed following a judicial 

interpretation in the 1980’s. Since then, Federal judges have been 

ordering bail bonds to be forfeited even when the defendant appears in court if the defendant fails to behave in certain ways. 

Bail agents who underwrite Federal bonds now must not only ensure appearance, but also other conditions, such as ensuring that 

the defendant will not consume alcohol, over which the bail agent 

obviously has little or no control. While bail agents do accept responsibility for a defendant, they cannot and should not be expected to be full-time nannies for each defendant. 

The Bail Bond Fairness Act preserves the authority of the judge 

to grant or refuse bail. The judge will continue to make a determination of the defendant’s flight risk and threat to the community. Judges will still have the discretion to determine who is eligible for pretrial release, what conditions accompany that release, 

and whether or not a suspected criminal is a considerable flight 

risk. We all agree that if a suspected criminal is a serious threat 

to society, he or she must stay in jail. 

That said, the bail bond system on which the judicial system relies will fail if it is not reformed. For example, nonviolent individuals who are no real threat to our society will not be able to get 

bonds at all. Without reform, we run the risk of losing the services 

bail bond agents provide and forgetting the original purpose of the 

bail bond, which is to ensure the appearance of a defendant for a 

later court date. 

The bottom line is bail bonds should primarily be involved in 

guaranteeing appearance in court. Any other valid conditions set 

by the judge, such as alcohol or drug consumption, should not be 

tied to the bond, or the system will collapse. It makes much more 

sense to revoke the bail bond but not forfeit the bond if the defendant violates a condition set by the judge. 

Federal Rule of Criminal Procedure 46(e)(1) has withstood repeated court challenges. In cases such as United States v. Vaccaro, 

the rule has been held to authorize Federal courts specifically to 

16 

order bonds forfeited for violations of collateral conditions of release 

and not simply for failure to appear. 

Moreover, the Federal courts have committed to uphold and expand the rule because they find no evidence of congressional intent 

to the contrary, specifically finding the provisions of the Bail Reform Act of 1984 were not intended to supersede the rule. 

It is important to note that even without the authority of the 

Federal Rule of Criminal Procedure 46(e)(1), judges have authority 

to declare a bail bond forfeited for a failure to appear as required 

by the conditions of release. 

It appears that Federal judges have merged the purposes of bail 

and others conditions of release. I understand that judges have 

come to order bonds forfeited in cases in which the defendant actually appears as ordered, but fails to comply with some collateral 

conditions of release. As a result, the underwriting of bonds for 

Federal defendants has become virtually impossible. 

The Bail Bond Fairness Act of 2007 will amend sections 3146(a) 

and 3148 of the BRA to provide, essentially, that a judge could not 

declare a bond forfeited based on a violation of any condition of release, other than actual failure to appear physically before the 

court. The bill would also provide that forfeiture of a bail bond is 

not an available sanction for violation of a release condition. 

Where once the bail agent was simply ensuring the defendant’s 

physical presence, he or she now must guarantee the defendant’s 

general good behavior. This is simply unrealistic. 

Insofar as the risk for the bail agent has greatly increased, the 

industry has been forced to adhere to strict underwriting guidelines, in most cases requiring full collateral. Consequently, the Federal criminal justice system has been deprived of any meaningful 

bail options and bail agents have been effectively locked out of the 

Federal system since the 1980’s. 

I genuinely hope the Subcommittee will join Congressman Keller 

and I in supporting this much needed reform of the Federal bail 

bond system and allow professional bail agents to return to the 

Federal court system. 

I thank you very much for your consideration. 

[The prepared statement of Mr. Wexler follows:] 

PREPARED STATEMENT OF THE HONORABLE ROBERT WEXLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF FLORIDA, AND MEMBER, COMMITTEE ON THE JUDICIARY

Good morning. Chairman Scott, Ranking Member Forbes, members of the subcommittee, thank you for allowing me to testify in support of my bill, H.R. 2286, 

‘‘The Bail Bonds Fairness Act.’’ Since its first introduction in the 105th Congress, 

this bill has enjoyed bipartisan support; and I am pleased to join Congressman Keller, who has been a leader on this issue for years, to testify before the subcommittee 

this morning. 

Essentially, this bill seeks to restore realistic expectations for the federal bail 

bonds system, which was thrown off following a judicial interpretation from the 

1980’s. Since then, federal judges have been ordering bail bonds to be forfeited even 

when the defendant appears in court if the defendant fails to behave in a certain 

way. Bail agents who underwrite federal bonds now must ensure not only appearance, but also other conditions—such as ensuring that the defendant will not consume alcohol—over which the bail agent obviously has no control. While bail agents 

do accept responsibility for a dependent, they cannot, and should not be expected 

to be, full-time nannies for each defendant. 

The Bail Bond Fairness Act preserves the authority of the judge to grant or refuse 

bail. The judge will continue to make a determination of the defendant’s flight risk 

17 

and threat to the community. Judges will still have the discretion to determine who 

is eligible for pretrial release, what conditions accompany that release, and whether 

or not a suspected criminal is a considerable flight risk. We all agree that if a suspected criminal is a serious threat to society, he or she should stay in jail. 

That said, the bail bonds system—on which the judicial system relies—will fail 

if it is not reformed. For example, nonviolent individuals—who are no threat to our 

society—will not be able to get bonds. Without reform, we run the risk of losing the 

services bail agents provide and forgetting the original purpose of the bail bond— 

to ensure the appearance of a defendant for a later court date. 

The bottom line is bail bonds should be primarily involved in guaranteeing appearance in court. Any other valid conditions set by the judge such as alcohol or 

drug consumption should not be tied to the bond, or the system will collapse. It 

makes much more sense to revoke the bail bond but not forfeit the bond if the defendant violates a condition set by the judge. 

Federal Rule of Criminal Procedure 46(e)(1) has withstood repeated court challenges. In cases such as United States v. Vaccaro, the rule has been held to authorize federal courts specifically to order bonds forfeited for violations of collateral conditions of release and not simply for failure to appear. Moreover, the federal courts 

have continued to uphold and expand the rule because they find no evidence of Congressional intent to the contrary, specifically finding the provisions of the ‘‘Bail Reform Act of 1984’’ (BRA) were not intended to supersede the rule. 

It is important to note that even without the authority of Federal Rule of Criminal Procedure 46(e)(1), judges have authority under the BRA to declare a bail bond 

forfeited for a failure to appear as required by ‘‘the conditions of release.’’ It appears 

that federal judges have merged the purposes of bail and others conditions of release. I understand that judges have come to order bonds forfeited in cases in which 

the defendant actually appears as ordered, but fails to comply with some collateral 

conditions of release. As a result the underwriting of bonds for federal defendants 

has become virtually impossible. 

By way of history, in 1997 Congressman Bill McCollum, who now serves as Florida’s Attorney General, introduced legislation addressing this problem. The ‘‘Bail 

Bond Fairness Act of 1997’’ proposed amending Federal Rule of Criminal Procedure 

46(e) to divest judges of their authority to order bonds forfeited based simply on the 

defendant’s violation of a collateral condition of release. This alone would not solve 

the problem of judge’s using their authority to forfeit bonds for non-compliance with 

collateral conditions. A 2001 revision of the original bill clarified that federal judges 

would also be authorized only to declare bail bonds forfeited where a defendant actually failed to appear physically before a court as ordered and not when a defendant had simply failed to comply with other collateral conditions of release. Subsequently, the ‘‘Bail Bond Fairness Act of 2003’’ added provisions amending the ‘‘Bail 

Reform Act of 1984’’ (BRA) to clarify the issue of Congressional intent. 

The ‘‘Bail Bond Fairness Act of 2007’’ will amend sections 3146(a) and 3148 of the 

BRA to provide, essentially, that a judge could not declare a bond forfeited based 

on a violation of any condition of release, other than actual failure to appear physically before the court. The bill would also provide that forfeiture of a bail bond is 

not an available sanction for violation of a release condition. 

Where once the bail agent was simply ensuring the defendant’s physical presence, 

he or she now must guarantee the defendant’s general ‘‘good behavior.’’ This is simply unrealistic. Insofar as the risk for the bail agent has greatly increased, the industry has been forced to adhere to strict underwriting guidelines, in most cases requiring full collateral. Consequently, the federal criminal justice system has been 

deprived of any meaningful bail bond options and bail agents have been effectively 

locked out of the federal system since the 1980’s. 

I hope the subcommittee will join me and Congressman Keller in supporting this 

needed reform of the federal bail bonds system and allow professional bail agents 

to return to the federal court system. I thank you for your time and consideration 

of the Bail Bond Fairness Act of 2007. 

Mr. SCOTT. Mr. Keller? 

TESTIMONY OF THE HONORABLE RIC KELLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. KELLER. Well, thank you, Mr. Chairman, for holding this 

hearing. I want to thank my colleagues, Congressman Forbes and 

Congressman Lungren, for appearing as well. 

18 

Some may be tempted to think that with Wexler and Keller supporting this bill, one of us has not read it. The truth of the matter 

is we have both read this great little bill, and we are wholeheartedly in support of it, and I am so proud that Congressman 

Wexler is the author and lead sponsor of this bill. 

It was previously before this Judiciary Committee where it was 

passed unanimously by a voice vote, enjoying the support of then 

Chairman Sensenbrenner and now Chairman Conyers. 

Let me just give you a real life example of why I think this bill 

is important. 

Imagine a man is arrested and he is given a $100,000 bail. He 

is not a particular flight risk or a danger to others. So he goes and 

gets a bail bond to secure his release. 

The bail bondsman has an obligation to make sure that he is 

physically there in court at each appearance, and he fulfills that, 

and yet after making sure this man is there at every appearance, 

the judge just says, ‘‘You know, I am going to have to forfeit your 

$100,000 bond because I heard that you traveled to your favorite 

restaurant just a mile outside of the county line,’’ or ‘‘I heard that 

you came home late, half an hour after the 10 p.m. curfew I gave 

you,’’ or ‘‘I heard that you got a speeding ticket for going six miles 

over the speeding limit.’’ 

Under those circumstances, the $100,000 bond can be forfeited, 

even though the bail bondsman did his job and made sure the defendant is there. 

Now that has some pretty terrible consequences, and the consequences are the bail bonds company will no longer give bail to 

people who do not have substantial assets to cover the $100,000 

bond, and so the question that the bail bond agent will ask, if we 

do not pass this bill, is, ‘‘Let me ask you a question, Mr. Defendant. 

Do you own a Mercedes? No? Do you own a BMW? No? Do you 

have $100,000 in your checking account? No? Do you have 

$100,000 in equity in your home? No? I am sorry. You are just 

going to have to stay in jail.’’ 

Now Martha Stewart can leave. She has plenty of assets, and we 

can give her a bond. But you cannot. And that disproportionately 

impacts in a negative way low-income folks and many minorities, 

and we think that is basically unfair. 

This bill preserves, however, the ability of judges to have serious 

consequences for those who do not follow their conditions, whether 

it be traffic tickets or jurisdictional boundaries or going to drug 

counseling. All the judge has to do is to revoke the bail bond and 

put the defendant in jail, which is a pretty powerful incentive. 

What he will not be able to do under this bill is to forfeit the bail 

bond. 

The gist of this bill is that bail bondsmen must guarantee the 

physical appearance of a defendant in court, and if they do, the 

bond will not be forfeited. That makes it fair for the defendant and 

fair for the surety companies, and it is fair for America because it 

puts two-and-a-half bail bondsmen out there as a sort of private security force to make sure that there is someone looking after them 

and that these folks appear in court. 

19 

So for those solid reasons, you have broad bipartisan support and 

a great bill, and I would urge my colleagues to support it, and I 

would yield back the balance of my time. 

Mr. SCOTT. Thank you. 

Ms. Braswell? 

TESTIMONY OF LINDA BRASWELL, MCBA, 

BRASWELL SURETY SERVICES, INC., STUART, FL 

Ms. BRASWELL. Thank you, Mr. Chairman and Members of the 

Committee. 

I am president of the Professional Bail Agents of the United 

States. PBUS is the national professional association representing 

the nation’s 14,450 licensed bail agents. 

You do have a copy of my written statement, and I would like 

to summarize that for you this morning. 

The historic purpose of the constitutional right to reasonable bail 

in the United States is to guarantee the appearance of a defendant 

for his or her court appearances. A bail bond is forfeited by a court 

if the defendant fails to appear as ordered. In essence, a bail bond 

guarantees the appearance of an accused person in court until his 

or her case has reached final disposition. 

In 1995, the 9th Circuit Court handed down an opinion in the 

United States v. Vaccaro that changed the Federal court’s interpretation of what a bail bond guarantees. 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 

Vaccaro opinion, bail agents and corporate surety bond insurers 

have been limited in executing bail bonds in the Federal court system due to excess risk. 

H.R. 2286 seeks to remedy the result of the 9th Circuit’s 1995 

opinion in the United States v. Vaccaro. The court ordered the 

$100,000 corporate surety bond forfeited because the defendant violated the personal conditions of his release imposed by the presiding judge. At no time did Mr. Vaccaro fail to appear at his 

scheduled court dates. He chose rather to travel outside the jurisdiction and commit a new offense. 

I as a bail agent can quantify the risk of non-appearance, but no 

one—no one—has the ability to predict a defendant’s performance 

or compliance with regard to personal conditions set forth for his 

or her release, for example, non-abuse of alcohol, drugs or whether 

they will commit an additional offense. 

H.R. 2286 is narrowly based. It reads that bail in the Federal 

court will be forfeited for non-appearance only, which conforms to 

the historic basis for bail. A Federal court can always require all 

kinds of conditions for a defendant when they are out on bail. It 

might consist of home monitoring, random urinalysis or other types 

of conditions. Those are conditions of bail that are levied directly 

on the individual defendant. The defendant is responsible for his 

behavior, not the surety who is guaranteeing his appearance. 

The real issue comes down to whether a surety is, in fact, a family member, be it a set of parents or grandparents who have put 

up cash, real estate or other items to guarantee the appearance of 

a defendant. Do these individuals who guarantee bonds really understand that they are liable for the defendant’s conduct, that they 

20 

are required to make sure that their child or grandchild abides by 

the conditions of release when, in fact, most of them truly believe 

that they are only responsible for his or her appearance? 

The Bail Bond Fairness Act would restore appearance as the sole 

basis for the forfeiture of a bail bond posted in the Federal court 

system. It will not hinder, it will not impede, nor will it restrain 

a Federal court from levering other types of conditions, but if a defendant violates the personal conditions of release, the court at its 

discretion can impose additional conditions, can revoke the bail, 

can remand the defendant back into custody, which is the personal 

penalty that the defendant will pay. A surety, on the other hand, 

will guarantee that the defendant appears in court, the traditional 

role of the surety in the United States. 

I ask that you support H.R. 2286 because it will allow bail agents 

and individuals to once again take up their traditional role of guaranteeing the appearance without threatening bail agents or individual families with catastrophic loss because a defendant violates 

a condition imposed by the court. I believe that a violation of conditions is something that the defendant should pay for and that the 

non-appearance in court is something that a surety should pay for. 

I appreciate your time. I ask for your support of H.R. 2286, the 

Bail Bond Fairness Act, so that I, as a professional bail agent, can 

once again serve the Federal court system in the traditional way 

of appearance. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Braswell follows:] 

21 

PREPARED STATEMENT OF LINDA BRASWELL


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Mr. SCOTT. Thank you. 

Judge Miller? 

TESTIMONY OF THE HONORABLE TOMMY E. MILLER, 

UNITED STATES DISTRICT COURT, EASTERN VIRGINIA 

Judge MILLER. We occasionally have these problems in our court 

also. 

Thank you, Chairman Scott and Congressmen Forbes and Lungren. I represent the Judicial Conference of the United States, 

which opposes this legislation. 

I would first like to comment that I found an error this morning 

in our commentary. The cite to the rule should be Rule 46(f), not 

46(e), in our testimony, and I think that every single other statement miscites it also. The rules were restyled in 2002, and the 

error has been carried over. 

Ms. Braswell has talked about the historical purpose of the bail 

bondsman, and I think it was not the Vaccaro case, but the Bail 

Reform Act of 1984 which has changed that historical purpose. 

I was an assistant U.S. attorney in 1984, and prior to the Bail 

Reform Act of 1984, we had to ask for outrageously high bonds that 

we knew the defendant could not meet in order to detain dangerous 

persons or persons likely to flee because there was no provision for 

detention. 

The Bail Reform Act of 1984 plus subsequent statutes have provided for detentions, and today approximately 50 percent of the defendants that appear in Federal court are detained, many of them 

based on the rebuttable presumption that Congress has presented 

to detain the defendant. 

So many of those individuals who had high bonds many years 

ago are being detained now, so the bonds simply are not available 

to be written because the defendants are detained without bonds. 

Congress directed that we are not to set financial conditions so 

high that a defendant not be able to meet bonds. My colleagues and 

I in setting a bond have an investigative report from the pretrial 

services officer, a very detailed report that deals with the family, 

the possibility of placement in a residence, third-party custodian, 

their job history, their financial status, drug use, alcohol use, criminal history, and we look at that in weighing what conditions should 

be met. 

In the Bail Reform Act, Congress has directed that we look 

through these various conditions before we select the least restrictive ones to ensure appearance and to prevent danger to the community, which, I think, is very important in this discussion. 

Least favored among these restrictions are financial surety 

bonds, according to the courts and the Bail Reform Act of 1984. So, 

as we deal with the 50 percent of the defendants who eventually 

are released on conditions, as we go through this list of 12 or 13 

or 15, depending how you count it, conditions that we have, a surety bond is at the bottom. 

Less than 1,000 surety bonds a year are set by my 500 magistrate judge colleagues in the United States. So that is 1-pointsome-odd bonds per year per magistrate judge for corporate surety, 

according to some figures I have received. So there are very few 

corporate surety bonds even established. Some of them are for apVerDate Aug 31 2005 12:58 Aug 26, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060707\35860.000 HJUD1 PsN: 35860
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pearance. Some of them are for the appearance and compliance. 

That is the way the bond form reads. Ms. Braswell terms it performance. 

So there are very few of these to start with. The last time this 

proposal was before the Congress, the administrative office did a 

search of the bonds that were forfeited in the United States for appearance and compliance—in other words, a failure to comply. In 

2000, there were 23 bond forfeitures in the 10 districts that used 

corporate sureties the most. In 2001, there were 14 in those same 

10 districts and 19 bonds forfeited in 2002 in the 10 districts that 

use corporate surety the most. 

I have been advised in preparing for this by the administrative 

office that they discovered some coding errors in some of the statistical information provided to Congress in 2002. These errors appear 

to have overstated the number of cases in which a corporate surety 

bond was issued in some judicial districts. I am advised that the 

errors are not likely to materially affect your deliberation on this 

issue because reported forfeiture numbers were accurate. 

The administrative office intends to work with your staff over the 

next few weeks to provide the Committee with fresh data in this 

area. 

Thank you. 

[The prepared statement of Judge Miller follows:] 

27 

PREPARED STATEMENT OF THE HONORABLE TOMMY E. MILLER


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Mr. SCOTT. Thank you. 

We have been joined by the gentleman from Massachusetts, Mr. 

Delahunt, and the gentleman from California, Mr. Lungren. 

I will now begin the questioning of the witnesses. 

Judge Miller, did I understand that only 1 percent, one bond per 

year per magistrate on average, is the surety bond? 

Judge MILLER. It is less than 2 percent. There are about 800 and 

some. Well, the figures were given to me yesterday for 2006 as they 

were restudying these numbers. There were less than 900. I think 

he said 888 bonds using corporate surety either for appearance or 

appearance and compliance. 

Mr. SCOTT. You indicated that 50 percent of the defendants that 

you see kind of on average are released. 

Judge MILLER. On conditions, yes. Various conditions. 

Mr. SCOTT. About 50 percent are detained. 

Judge MILLER. Most of them are either drugs or guns or child 

pornography where the Congress has created a rebuttable presumption that they be detained. 

Mr. SCOTT. And so of those released, they are all on recognizance? 

Judge MILLER. They are on various conditions of release. As you 

go through the language of the statute, we are supposed to release 

on personal recognizance, then unsecured bonds, supervision by 

pretrial services, put them in a halfway house and various other 

conditions. Each individual is treated separately and investigated 

separately by the folks from pretrial services. 

Mr. SCOTT. Now do you know what the situation is in State 

court? 

Judge MILLER. Well, I tried to get statistics myself on Tuesday, 

and I was unable to find forfeiture statistics or conditions. I did 

talk to the clerk of court of the general district court in Norfolk, 

just out of curiosity. 

He tells me they have about 140,000 traffic and criminal cases 

per year, and that would be from speeding tickets to preliminary 

hearings for murder, and they have about 25 corporate bail forfeitures per month in the general district court in Norfolk, a city of 

a population, as you know, under 200,000. 

So that is all I could find on this very short notice. So there are 

as many forfeitures in the general district court in Norfolk in a 

month of corporate sureties as there are in the Federal courts in 

a year for these types of violations. 

Mr. SCOTT. Now the standard in State courts is the bond is just 

to guarantee the appearance? 

Judge MILLER. That is correct. 

Mr. SCOTT. Why should there be a difference in standard between the State court and the Federal court? 

Judge MILLER. I think the courts that have upheld the Vaccaro 

and the other courts that have upheld the appearance and compliance bond were actually trying to follow the mandate of Congress 

to, as we interpreted it or as they interpreted it—I have not written an opinion on this—work with the least restrictive conditions. 

When you get to having a surety bond that requires appearance 

and compliance, that is about the least favorite or least preferred, 

statutory or case law, condition, and if this bill passes, those folks 

46 

that are in the final category, the appearance and compliance bond, 

that a judge is sitting there looking at them thinking that, ‘‘Okay. 

We need a guarantee by surety that they will not use drugs, not 

threaten a witness. Otherwise they are detained,’’ they will not be 

released on bond. They will be detained, if it was in front of me. 

Mr. SCOTT. Okay. Let’s be clear. As you go down the list, if you 

have gotten down to surety plus conditions, the alternative is not 

surety because they already flunked that condition. The result will 

be detention. Is that—— 

Judge MILLER. I would say that is a probable outcome. 

Mr. SCOTT. And if you could release them on just appearance, 

bonded for appearance only, if you could have done that, you would 

have done that? 

Judge MILLER. Yes. 

Mr. SCOTT. And since you cannot do that, you go down to one 

more condition, you lose that possibility, and the alternative is 

going to be detention. 

Judge MILLER. Most likely, depending on the individual. 

Mr. SCOTT. Ms. Braswell, in the Federal system, is it true that 

there are very few bonds that are written on the Federal system 

right now? 

Ms. BRASWELL. Yes, sir. 

Mr. SCOTT. And did that start because of the conditions or did 

that start because of the Bond Reform Act 20 years ago? 

Ms. BRASWELL. To my knowledge, it is basically the conditions. 

The bail agent cannot assume that risk. 

Mr. SCOTT. Were they assuming the risk before that? 

Ms. BRASWELL. For the appearance, yes, sir. 

Mr. SCOTT. And were bonds issued in greater numbers prior to 

the conditions being imposed? 

Ms. BRASWELL. I can only speak from my personal knowledge. 

But of my personal knowledge, yes, sir, I wrote many more bonds 

in days prior than I do now. 

Mr. SCOTT. Okay. 

Mr. Forbes? 

Mr. FORBES. Thank you, Mr. Chairman. 

And, Judge Miller, we thank you for being here and certainly appreciate what you do and what the other judges do. 

Ms. Braswell, we appreciate what your industry does. 

And, certainly, we are appreciative of Mr. Keller and Mr. Wexler 

trying to find a fix for this problem. 

But, Judge Miller, I want to kind of follow up with what the 

Chairman was asking to see if I can get a handle on it. As I understand what you are saying, in this small number of people where 

there is required a corporate surety, by the time you get there, that 

is the least favorite that you would have. 

Is it your opinion—and I know you probably have not had time 

to get all the statistics on this—that the reason that is such a 

small number is not because of an unwillingness of bondsmen to 

write the bond, but because that is simply the smaller set of people 

that you are willing to release in that particular category? Is it because people are just not willing to write the bonds? 

Judge MILLER. I am speaking from personal experience—— 

Mr. FORBES. I understand. That is all you can do. 

47 

Judge MILLER [continuing]. And also talking with some of my 

colleagues around the country about this issue. I did research it in 

1998, and in 2002. I was on the Criminal Rules Committee at the 

time. 

My colleagues and I are at this last point, and generally what 

happens in court—and it has only happened to me four or five 

items. I rarely use this compliance condition—is that the defendant 

and defense counsel come up and say, ‘‘Judge, his mother and father, his grandmother, whomever, willing to put up the house. He 

will live at the house. They will monitor him as a third-party custodian, and they will look out for him, and they agree to come in and 

report if he violates the conditions.’’ 

Well, I do not just release the defendant on the defense attorney’s say-so. I make sure the surety is there, the grandmother, the 

mother, father. I bring them up to the podium. I read to them what 

the conditions are of the third-party custodian. I was on the Education Committee, and this is what Magistrate Judges are trained 

to do. I read them to the conditions, and I go over the possibility 

of forfeiture of the house. 

Usually then, I will ask the parents, ‘‘Do you have enough faith 

in your son that you would post your house, understanding these 

conditions?’’ and make sure that they are not just looking at a piece 

of paper, that they tell me that they have faith in Johnny to reappear and to comply with these conditions. 

On the rare occasions in which I have used the appearance and 

compliance bond, I have done all that, and then sometimes I still 

do not have faith in the parents and the defendant that he is going 

to show up, and I detain the person because—— 

Mr. FORBES. Well, let me go to the ones where you did have the 

faith in it. Let me put on Ms. Braswell’s hat now. I want you to 

answer this, though, Judge, if you can. What can the bondsmen do 

in a situation like that? Mr. Keller raises a good point. 

I know this is rare, but I have had situations where people have 

told me—I know one recently where a man was at a soccer game 

for his son, you know, a good guy. He is watching the soccer game. 

The soccer game gets delayed. He is torn between does he walk out 

on his son, does he stay for the last 15 minutes. He stays for the 

last, I mean, literally, and then he gets caught in traffic going 

back, and he is late, you know, and his bond was not forfeited, but 

he is in a situation where, you know, those kinds of things do happen. 

What does a bondsman do? I mean, we get on them all the time, 

worried about whether they are using too much authority, well, you 

know, how they are going after people and those kinds of things. 

What do they do to police them from drug use and those kinds of 

things? So how can I look at Ms. Braswell and say, ‘‘This is how 

you can monitor it.’’ What do we ask them to do? 

Judge MILLER. It is up to them to decide whether they want to 

run the risk. On the appearance and compliance bonds that I have 

dealt with, I have only dealt with family members, and I have personally advised them of the risk. 

Mr. FORBES. I just think that gets to a point where the bondsman really does not have many good—— 

48 

Ms. Braswell, what can you do in that situation? How do you 

monitor, you know, Defendant A if they are out and you are worried about whether they are going to be on drug use or whatever? 

How do you monitor that? I mean, I understand appearance. You 

can go grab them, you can get them in court, and you can find 

them. But that is tough enough. How do you monitor those other 

compliance conditions? 

Ms. BRASWELL. You cannot. You cannot. There is no efficient 

way. The only way that I could tell you—and it is not possible— 

is you would have to attach yourself to that person 24 hours a day, 

7 days a week. That is the only way that I or anyone else could 

guarantee anyone’s behavior or performance. 

And not being wise here or smart-alecky, the truth, in fact, were 

if I could do that or if you could do that, we would not need to build 

new jails. We would not need to have judges. We would not need 

to have new courthouses because, if we could figure out how to do 

that, we would all have the solution to that problem, and—— 

Mr. FORBES. Judge, my time is out, and the Chairman needs to 

move on to another questioner. But one of the things that just really concerned me—I understand your position and Ms. Braswell’s, 

but it just seems to me that if you have that one defendant, and 

it is his mother or it is his father’s property, maybe there is something intrinsically maybe that says, ‘‘I do not want them to be at 

jeopardy.’’ 

I do not see what he has for the corporate surety most of the 

time. He is sitting there to them, and he is saying, you know, ‘‘I 

do not know them.’’ You know, ‘‘I have just paid my premium.’’ So 

we do not have that connection—— 

Judge MILLER. Well—— 

Mr. FORBES [continuing]. And then I really do not know what realistically they have to enforce it. 

I am sorry. Go ahead, Judge. 

Judge MILLER. From reading Ms. Braswell’s statement, she talks 

about the collateralization of these bonds. Usually, if there is a corporate bond involved here, they have obtained as much collateral 

as they can from grandmother or father or mother and have deeded 

the house whenever they can get it—at least that is my experience 

with the bondsmen I know—so that if the bond is forfeited by the 

court, the bondsman pays the $50,000 bond and then goes and 

takes the house. 

That would be their decision to do after they paid the $50,000 

under 46(f)(2), I believe it is. It is up to a U.S. district judge to determine whether to remit any or all of the $50,000. 

Mr. FORBES. Thank you. My time has expired. 

Mr. WEXLER. Mr. Chairman, could Mr. Keller and I have an opportunity to respond, with your permission? 

Mr. SCOTT. Sure. 

Mr. FORBES. I did not mean to cut you off. I was just out of time. 

Mr. SCOTT. The gentleman from Florida, Mr. Wexler? 

Mr. WEXLER. Just in response, respectfully, to the judge’s testimony, I am somewhat astonished as to the logic that is being employed by the judicial branch. 

In essence, it seems to me that the judge’s testimony entirely 

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tier system, those who can afford and those who cannot, and the 

issue in H.R. 2286 is not who should be detained and who should 

not. If a judge decides the person should be detained because they 

are a risk to the community, then they should be detained, and this 

bill does not affect anything. The only people this bill affects are 

those that a judge has determined should be released, and then the 

question is whether they have the means in which to employ a secured bond. 

The judge’s testimony suggests that the judicial branch does not 

support the bill because it is rarely used in the Federal courts, although it is regularly employed in State courts. Or it is not regularly employed in Federal courts because they are not available in 

Federal courts because of the conditions that make it financially 

unreasonable for a bond company to provide the bond. 

So the effect is, as the judge very ably testified, he is in the position of asking Mom or Grandmom to come up. Well, what about the 

situation where Grandmom says, ‘‘Well, I am not so sure.’’ Well, 

then that is it! The judge has decided he is no risk. Grandmom 

says, ‘‘I am not sure.’’ So, even though the judge has decided he is 

no risk, he is back in. 

But if this bill were passed, the defendant would have another 

option, which is to go to a surety company, and if the surety company determines to offer the bond at whatever price is issued and 

it was available at a reasonable rate, then that defendant, who the 

judge has determined is not a risk to society, would not be detained. 

Mr. KELLER. I just have two points to respond to the judge. 

I appreciate Judge Miller being here, but, first, the gist of his argument seems to be it is not that big a deal because there are very 

few bonds forfeited. That is because there were very few bonds 

issued because you had people sitting in jail because they do not 

have a Mercedes or BMW or $100,000 in their bank account as collateral. 

The case that I mentioned, the hypothetical case about what if 

you had a $100,000 bond and you crossed the jurisdictional line 

and then you forfeit, that was a real case. That is the Vaccaro case 

from 1995, and the court in the 9th Circuit there said, ‘‘Well, if you 

do not like this situation where you can forfeit $100,000 bond just 

by traveling outside the jurisdiction, then Congress should fix it.’’ 

That is what we are doing. 

The second thing I would point out is I really respect the judge 

and his organization, but let me be crystal clear: He is not speaking for all judges in the United States here by any means. For example, you have an original co-sponsor of this bill as Judge Ted 

Poe. 

Now, Judge Poe is from Texas. He is a tough judge. He is like 

the Clint Eastwood of judges. If I went before Judge Poe and saw 

that that is the guy I had drawn, I might just plead guilty then 

just to avoid being in front of him. But as tough and as great a 

reputation as he has, he thinks this is a good bill. He thinks this 

is fair. He thinks he still has the appropriate remedies to put people in jail who violate his conditions. 

And so, with that in mind, I still would urge folks to support this 

bill. 

50 

Mr. SCOTT. I think the judge’s testimony was speaking for the 

Judicial Conference, not for all judges, but for the conference. Is 

that right, Judge? 

Judge MILLER. That is correct, except when I was giving my personal viewpoint, which I was requested to give. 

Mr. SCOTT. Okay. Thank you. 

The gentleman from Massachusetts? 

Mr. DELAHUNT. Yes, I understand, Ms. Braswell, you clearly do 

not have the resources to do the monitoring. And I appreciate that 

beyond appearance, given various presumptions that have been enacted by Congress and other concerns that the court may have 

based on Federal probation recommendations, the issue is if there 

are conditions that need to be monitored in the event—decided by 

a judge magistrate or a Federal magistrate—how do you do it? 

I guess my question is, why not go to a system where appearance 

is the sole avenue in terms of the issuance of a bond? But if there 

are additional concerns that the court has regarding a particular 

defendant, why not utilize the Federal probation service to do random monitoring to ensure compliance with those conditions? 

Judge Miller? 

Judge MILLER. Well, we do. We do use Federal pretrial in some 

districts that—— 

Mr. DELAHUNT. Okay, but my point is if we maximize their use 

in terms of the conditions that you as a Federal magistrate have 

in terms of compliance, why not go back to the original system of 

appearance being the essence of the issuance of a bond? 

Judge MILLER. Well, as I stated in my opening statement, I believe Congress changed the philosophy back in 1984—— 

Mr. DELAHUNT. Well, we can change it again given the—— 

Judge MILLER. You can. 

Mr. DELAHUNT [continuing]. Realities of what we are hearing 

here today. 

Judge MILLER. The Bail Reform Act of 1984 had us look at both 

dangerousness and risk of flight, and—— 

Mr. DELAHUNT. I understand. 

Judge MILLER [continuing]. That is what we look through as we 

go through—— 

Mr. DELAHUNT. I guess what I am saying to you is that it is an 

existing resource for the Federal probation service, okay? 

Judge MILLER. It is. It is. 

Mr. DELAHUNT. They have a case load much less than most State 

probation services have. Is it, in your opinion, a significant additional burden to require the Federal probation service to insist 

upon compliance with conditions that a magistrate might feel are 

necessary? 

Judge MILLER. That is one of the lesser steps that is used in this 

process, that we have the pretrial services supervise the defendant, 

and they do that. They require them to come in. 

Mr. DELAHUNT. I understand, but I am trying to solve the problem that has been articulated here by saying use them and take 

the concerns that you hear expressed here and utilize them as well 

as a surety bond so as to ensure appearance. 

Judge MILLER. When the court sets a bond, ordinarily, we set, 

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selves. This bill would say that if a defendant violates conditions 

of appearance or conditions of release, if he has a compliance bond, 

that we could not forfeit the $10,000 even if it is the defendant’s 

money and he took a gun and was chasing down a witness. It is 

a broad bill. It is broader than the focus of—— 

Mr. DELAHUNT. I yield back. I think I have made my point, and 

I suggest that we take a look at utilization of the Federal probation 

service. 

Ms. Braswell, do you have a response? 

Ms. BRASWELL. Yes, sir. Thank you. 

There are two types of bond forms that we are traditionally given 

that exist: the AO98, which is strictly an appearance bond form, 

and the AO98A, which is appearance and conditions. 

I can tell you that from talking with my colleagues and with the 

personal experiences that I have had, we are never given a choice. 

The choice belongs to the judge. They tell us which form we are 

going to use and prepare it for us to use. We are not given a choice 

there, and that was the one thing I wanted to say to you. 

I understand what you were trying to get at with your question 

to the judge, and what I stated in my statement is still a fact. We 

could guarantee appearance, and that is it. We are not taking the 

judicial discretion from the judge. We are not going to interfere 

with his discretion. We are not going to interfere with the process. 

The judge can put whatever conditions on the bond that he so 

wishes, whether it be the defendant home at 10 or that he does not 

cross the State line or whatever, get arrested again, and then he 

has the discretion of ordering that bond revoked or whatever he 

would like to do—make greater conditions, order Federal pretrial 

services to pick this defendant up, to monitor his behavior. He still 

has that discretion. This changes none of that. 

Mr. SCOTT. The gentleman from California? 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

I am amazed when I come to hearings, and I get to learn things. 

In 1984, the Bail Reform Act was part of the Comprehensive Crime 

Control Act which passed the House of Representatives on a motion 

to recommit on a continuing resolution. I happened to be the author of that motion to recommit. I spent several years preparing for 

that. 

I did, in fact, lead the charge to change bail in the United States 

on the Federal system so that, in fact, you could take into consideration dangerousness in the community, so that you could have pretrial detention under certain circumstances, but I am amazed to 

learn that I intended to change the bail surety system in the 

United States. 

Of course, having had experience with the 9th Circuit, it does not 

surprise me that they would tell me things that I did not know, 

since they often find things in the Constitution that are difficult, 

if not impossible, to find, in the first instance. 

I understand here where we are talking about the seldom use of 

surety bonds in the Federal system. That is the point! The Federal 

system has basically written out surety bonds. The Federal courts 

have basically said, ‘‘We do not want them,’’ and the 9th Circuit allowed you to do that. 

52 

I think we have a decision here as to whether or not we think 

that the Federal system is so different than the State system, most 

of which State systems have adopted pretrial detention along the 

lines that we have on the Federal system for violent criminals, but 

have not gotten rid of surety bonds and have not done it in the way 

that it has been done in the Federal system. 

So I, for one, having a little bit of experience on this, believe 

that, number one, I am very proud of the Bail Reform Act because 

I believe that the people who are a danger to the community ought 

to be held, if that determination is made prior to trial under those 

circumstances that we established in the law. 

But, at the same time, I believe that the bail system, having 

looked at it for 20 or 30 years, works pretty well. It actually is a 

pretty good system that allows us to have third parties go out and 

round up these characters if they do not show up for trial, which, 

otherwise, would be required by our system. 

Or, Your Honor, with all due respect, if what you are telling us 

is that the threat is by the Federal courts that if we pass this, you 

are not going to let people out that you think ought to be out, 

frankly, we are going to take that risk. I do not want people who 

are a danger to the community out there, but that is the judgment 

that you folks make, and if you think that someone is a danger to 

the community prior to trial, then that is the decision you ought 

to make. 

But please do not suggest that it is now going to be our fault that 

you are not going to be letting people out that you think ought to 

be out because we have changed this. All we are changing is 

whether or not the bail bonds person is going to be responsible for 

daily monitoring these individuals to make sure that they do comply with your other conditions as opposed to the traditional notion 

we have had in this country for, I think, going back almost to the 

beginning of the republic that bail bondsmen are a third-party 

mechanism by which we guarantee people show up when they are 

supposed to show up. 

Now, if we want to change that, it seems to me Congress should 

change that, but I do not think the 9th Circuit should be telling 

us what they think we ought to do or they think we did when I 

cannot recall a single person discussing it in all the time that we 

spent coming up with the Bail Reform Act suggesting we wanted 

to get rid of surety bonds in this circumstance. 

So, Your Honor, if you and the Judicial Conference have specific 

areas of overreach in this bill, as you just suggested in your last 

reply, we would love to see that so if amendments are necessary 

to ensure that we are not overreaching, we would be happy to do 

it. 

I just want to make sure that we adjust the problem that exists 

now, which is the Federal system has basically determined you do 

not want surety bonds. That was never the intention of Congress 

as far as I can understand. But, then again, I was just the chief 

author of the legislation. 

I thank you for the time. 

Mr. SCOTT. Thank you. 

Let me ask a couple other questions. 

Oh, I am sorry. The gentleman from North Carolina, Mr. Coble? 

53 

Mr. COBLE. Thank you, Mr. Chairman. I had a Transportation 

hearing, and I just got here. So I will have no questions at this 

time. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Let me ask a couple other questions. 

Now, Judge Miller, as I understand the bill, this does not prohibit you from, as a condition of release, imposing behavioral 

standards? 

Judge MILLER. No, it does not. 

Mr. SCOTT. What it does is if there is a violation, it limits your 

sanctions in that you cannot forfeit the bond? You can impose other 

sanctions, revoke the bond or detain the person from then on. You 

could fine the person and try to get the fine from somewhere other 

than the bond. 

Judge MILLER. Fine them for contempt? Is that what you are 

suggesting? 

Mr. SCOTT. Yes, I guess. It is essentially what you are doing 

when you revoke the bond. Are there other things that you could 

do other than revoke the bond pretrial? 

Judge MILLER. Change the conditions and perhaps add conditions to the bond. Various districts have different kinds of conditions. 

Mr. SCOTT. But, I mean, we ascertained that when you get down 

to the list and release without conditions on a bond, if you fail that, 

then you get down to release with conditions. You can still get 

down to that and release them with the conditions. The sanction, 

however, could not be, if this bill passes forfeiting the bond. 

Judge MILLER. Could not forfeit the bond whether it was posted 

by a corporate surety, by a parent or by the defendant who violated 

the conditions. 

Mr. SCOTT. If the defendant posted bond himself and you have 

ascertained that, then you could get that with a fine. Is that right? 

Judge MILLER. You would have to go through contempt procedures. That is the only way I can think of doing it, and that is—— 

Mr. SCOTT. Then how do you get money out of the bond without 

any similar kind of proceeding? 

Judge MILLER. If it is a forfeited bond, the bond has been posted 

with the court. The defendant posted the $10,000, and we already 

have the money in hand. We just turn it over to the Treasury. 

Mr. SCOTT. Well, if you are going to turn over the money that 

is essentially in escrow to the Treasury, how do you do that without any of the same proceedings you would need to get money out 

of his pocket? You are hitting him for, say, $10,000. How do you 

do that without the same kind of proceedings that you would fine 

him $10,000? 

Judge MILLER. Well, there would be two separate proceedings. 

The procedure to forfeit the bond is a separate procedure that we 

go through pursuant to Rule 46. That would be a show cause hearing. 

If a corporate surety was involved, they would be notified. They 

could come in and defend the reasons for remission. A district 

judge would determine that. 

54 

For contempt, it would be a totally separate proceeding with notice to the defendant that he is in contempt of court for these various reasons, for failing to follow the order of the court setting conditions of release. 

So it is separate issues. 

Mr. SCOTT. So, essentially, by posting the bond, you have given 

up your rights to be tried on the question of whether you are going 

to lose $10,000. 

Judge MILLER. If you posted a $10,000 bond, that money comes 

back to you. If you appear—— 

Mr. SCOTT. That is right. And if you want to keep it and not give 

it back to the defendant, he does not have the same kind of right 

as he would if it were a straight-up bond. 

Judge MILLER. Different types of rights. I think a bond would be 

a civil procedure so you would have a preponderance of the evidence standard as to whether he violated the condition. If it was 

a fine, a criminal fine, you, of course, have to prove it beyond a reasonable doubt. But that would be a distinction that leaps to my 

mind right now. 

Mr. SCOTT. Do you have other questions? 

The gentleman from Virginia? 

Mr. FORBES. Thank you, Mr. Chairman. 

And, Judge, this is for you and for Ms. Braswell. 

Ms. Braswell, I am not conversant on the exact case law now as 

to the rights of the bondsman as to the individual that they have 

bonded out, but I know under a lot of the State law, it is pretty 

strong. You can do pretty much what you want in grabbing that 

individual whenever you want to grab that individual if you think 

that they have violated something or may be getting ready to abscond. I could be wrong on that. 

Judge, is there any differentiation between the rights and the 

processes that you would go through if you have somebody under 

a pretrial release process and you perceive that they have not been 

in compliance versus what the bondsman might be able to do in 

that same situation if they perceive they were not in compliance? 

And maybe I have not articulated that well. Is that—— 

Judge MILLER. The bondsman, under Federal statute, can return 

the defendant to court. 

Mr. FORBES. Anytime they want to? 

Judge MILLER. I think they have to have a reason, just as pretrial services tells—— 

Mr. FORBES. I do not think they do. I mean, I think Ms. Braswell 

will tell you if you just feel that they are going to be leaving the 

State or whatever, I think—and some people out there are shaking 

their heads, so I do not know. 

Ms. Braswell, you tell me. What are your rights? 

Ms. BRASWELL. Thank you, sir. 

Taylor v. Taintor, which was the United States Supreme Court 

decision 100-some-odd years ago, gives the bail agent the right to 

apprehend and surrender the defendant at any time. 

In some State laws, you are still allowed to apprehend the defendant based on that decision, but there are some State rules and 

regulations in certain States that if you put this individual back 

prior to his failing to appear that you might have to return some 

55 

of his money. But Taylor v. Taintor gives us clear and distinct 

rights to apprehend the defendant at any time. 

Mr. FORBES. I did not realize the case, but I thought that was 

the law. 

But, Judge, if we let them out on a pretrial supervised basis, how 

do you then determine that they may be in non-compliance? Do 

they go through all the due process rights and have hearings on 

that? 

Judge MILLER. The pretrial services officer will write a violation 

report to me. He will affirm it under oath. I will issue a warrant 

for their arrest. The marshals will arrest them. Then we will have 

a hearing to determine whether they should be revoked. Eighteen 

USC 31 49 is the surrender of an offender by a surety, and Ms. 

Braswell is correct. She can bring them in for any reason. 

Then, subsequently, we would have a hearing just as if the marshals had arrested him on my warrant to determine whether it 

should be revoked and to use this language, and they absolve the 

surety of responsibility to pay all or part of the bond in accordance 

with Rule 46. 

Mr. WEXLER. Mr. Chairman? Could we just have the one quick 

opportunity to respond again? 

Mr. SCOTT. Yes, sir. 

Mr. WEXLER. With all due respect to the judge again, I have sat 

here trying to figure out the example that the judge gave in terms 

of the gentleman who in theory would be provided release based on 

the surety bond, who then waved around the gun, and then the 

judge gave the example of this bill would allow—I think in effect 

what the judge was saying is one of the reasons why the bill ought 

to become law is because this bill would allow somehow that defendant to be the beneficiary of his errant behavior and would not 

have his money forfeited. 

I am trying to understand the logic behind the example because 

the judge defends the current situation, which, admittedly, he testified is rarely, if ever used. In 1 percent of the cases is a surety 

bond issued. 

So, under the current system, if a judge determined that that defendant should be released—and that is the only time this would 

be relevant because if a judge determined he should not be released, he would not be out to be waving his gun in the first 

place—under the current system, 99 out of 100 times, the defendant that the judge let out would wave his gun and there would be 

no money lost anyway! 

So how is it that if we pass this bill, we would somehow be rewarding this behavior that today is not rewarded? I cannot figure 

it out. 

Mr. SCOTT. I would like to thank the witnesses for their testimony. 

The Members may have additional written questions for the witnesses which will be forwarded to you, and, if so, I would ask you 

to answer them as promptly as you can so they can be made part 

of the record. 

We have several documents for the record, two written statements for the record: One has been provided by Mr. Gallagher of 

56 

the Surety & Fidelity Association; the second has been provided by 

Mr. Roche, past president of the Professional Bond Agents. 

[The information referred to follows:] 

57 

PREPARED STATEMENT OF EDWARD G. GALLAGHER, 

THE SURETY & FIDELITY ASSOCIATION OF AMERICA


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PREPARED STATEMENT OF ARMANDO ROCHE, MCBA, 

PAST PRESIDENT, PROFESSIONAL BAIL AGENTS OF THE UNITED STATES


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Mr. SCOTT. There are other things coming before the Committee. 

The hearing is now adjourned. 

[Whereupon, at 11:09 a.m., the Subcommittee was adjourned.] 

Æ 


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