110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–208 

BAIL BOND FAIRNESS ACT OF 2007 

JUNE 22, 2007.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 2286] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 2286) to amend title 18, United States Code, and the Federal 

Rules of Criminal Procedure with respect to bail bond forfeitures, 

having considered the same, reports favorably thereon without 

amendment and recommends that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 1 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 3 

Committee Consideration ........................................................................................ 3 

Committee Votes ...................................................................................................... 3 

Committee Oversight Findings ............................................................................... 3 

New Budget Authority and Tax Expenditures ...................................................... 3 

Congressional Budget Office Cost Estimate .......................................................... 4 

Performance Goals and Objectives ......................................................................... 5 

Constitutional Authority Statement ...................................................................... 5 

Advisory on Earmarks ............................................................................................. 5 

Section-by-Section Analysis .................................................................................... 5 

Agency Views ........................................................................................................... 6 

Changes in Existing Law Made by the Bill, as Reported ..................................... 8 

PURPOSE AND SUMMARY

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

Federal Criminal Code to prohibit a Federal court from declaring 

forfeited a bail bond for violation of a specified collateral condition 

of release. In so doing, the legislation seeks to restore the use of 


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1 18 U.S.C.A. § 3142(e) (2006). 2 United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995). 

bail bonds to their historical origin, which traditionally focused exclusively on guaranteeing a defendant’s physical presence in court. 

BACKGROUND AND NEED FOR THE LEGISLATION

Historically, the sole purpose of affording bail to a defendant has 

been to ensure his or her appearance in court. Currently, however, 

Federal judges have merged the purposes of bail and with other 

conditions of release. As a result, the bonds are ordered forfeited 

in cases in which the defendant appears as required, but fails to 

comply with some collateral condition of release. For example, if 

the defendant uses illegal drugs, fails to maintain a job, or travels 

beyond a certain area, the court may order that: (1) the defendant’s 

bail be revoked; (2) the defendant be returned to jail; and (3) the 

bond be forfeited. 

Section 3142(e) of title 18 of the United States Code provides 

that a judicial officer may order a defendant to be detained before 

trial if there are no reasonable conditions to ensure the defendant’s 

appearance in court and the defendant is a threat to a witness or 

the community.1 Thus, risk of flight and whether the defendant 

presents certain threats are the sole statutory criteria for detaining 

a defendant. 

Nevertheless, the Federal courts, as authority for their expanded 

use of bail bonds, rely on Federal Rule of Criminal Procedure 46(f), 

which has withstood repeated court challenges. For example, the 

Ninth Circuit held that a court, pursuant to this Rule, may order 

a bond to be forfeited for a defendant’s violation of collateral conditions of release and not simply for his or her failure to appear.2

The adverse consequences of forfeiting a bond as a method of 

monitoring a defendant’s performance—rather than for its historically narrowly-tailored purpose—are significant. First, bond writers, which include commercial underwriters as well as the families 

and friends of the defendant, risk forfeiting their assets when a defendant fails to meet all pretrial release conditions, including the 

defendant’s performance. To protect their assets, these bond writers must monitor the defendant’s performance and behavior while 

on pretrial release, a virtually impossible task. As the risk to bond 

agents has increased dramatically, they are refusing to provide 

bonds and, as a result, the availability of these bonds is virtually 

nonexistent in the Federal system. 

Second, the effect of restricting the availability of bail bonds has 

a disparate impact on wealthy and poor defendants. Irrespective of 

their risk of flight or danger to the community, the elimination of 

third-party bonds renders poor and disadvantaged defendants less 

able to obtain pretrial release. Conversely, wealthier defendants 

who can use their own assets for collateral can then post their own 

bond without resorting to third parties. Consequently, defendants 

with significant assets are afforded pretrial release, while poor defendants are incarcerated before trial regardless of their risk of 

flight and threat to the public, which would appear to conflict with 

section 3142(e). 

Third, family members of the defendant or anyone willing to 

raise collateral to help procure a bail bond are also put at undue 


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financial risk. Like the increased risk to bond writers, persons putting their homes and at risk may lose their assets, even if the defendant attends court appearances and is not a threat to the community. Thus, fewer family members and friends are willing to assist in procuring a bond and those who do may unjustly lose their 

assets. Remanding a defendant into pretrial detention when he or 

she is not a flight risk nor a danger to witnesses or the community 

also creates an undue financial burden on our Nation’s prison system. 

Fourth, should a defendant’s bond be revoked for a performance 

issue such as unemployment, the defendant’s incentive to make 

court appearances is diminished. Consequently, the bond revocation for a performance matter has created a flight risk defendant 

who may not have been. 

HEARINGS

The Committee’s Subcommittee on Crime, Terrorism and Homeland Security held 1 day of hearings on H.R. 2286 on June 7, 2007. 

Testimony was received and heard from Representatives Robert 

Wexler (D-FL) and Ric Keller (R-FL); Linda Braswell, MCBA, Professional Bail Agents of the United States; and United States Magistrate Judge Tommy E. Miller, Eastern District of Virginia. Additional statements were also submitted for the record by Edward 

Gallagher, General Counsel, The Surety and Fidelity Association of 

America; and Richard A. Hertling, Principle Deputy Assistant Attorney General, United States Department of Justice. 

COMMITTEE CONSIDERATION

On June 7, 2007, the Subcommittee on Crime, Terrorism and 

Homeland Security met in open session and ordered the bill, H.R. 

2286, favorably reported, by voice vote, a quorum being present. On 

June 12, 2007, the Committee met in open session and ordered the 

bill H.R. 2286 favorably reported without amendment, by voice 

vote, 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 there were 

no recorded votes during the Committee’s consideration of H.R. 

2286 

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. 


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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 

the bill, H.R. 2286, 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, June 22, 2007. 

Hon. JOHN CONYERS, Jr., 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. 2286, the Bail Bond Fairness Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Daniel Hoople, who can 

be reached at 226–2860. 

Sincerely, 

PETER R. ORSZAG, 

DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 

Ranking Member 

H.R. 2286—Bail Bond Fairness Act of 2007. 

H.R. 2286 would prohibit the forfeiture of a bail bond in Federal 

court based on a defendant’s failure to abide by certain conditions 

of their temporary release. Under current law, a Federal judge may 

grant a criminal defendant temporary release pending trial. Such 

a release may include conditions such as travel restrictions, abiding 

by a curfew, maintaining employment or attendance in an educational program, and part-time incarceration. Because such conditions often include a pledge of assets, defendants may obtain a bail 

bond to act as a surety for their future appearance in court. Upon 

failure to appear in court, or upon violation of another condition of 

release, a judge may declare the bond forfeit. H.R. 2286 would 

amend current law to allow forfeiture only in cases where a defendant fails to appear in court. 

Enacting this bill could reduce the number of bail bonds declared 

forfeit by the Federal courts. Proceeds from forfeited bail bonds are 

recorded as revenues, then deposited in the Crime Victims Fund of 

the Department of Justice, and later spent. Thus, CBO expects that 

the net effect on the Federal budget from any reduction in revenues and direct spending resulting from this bill would not be significant. 

H.R. 2286 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on State, local, or tribal governments. 

The CBO staff contact for this estimate is Daniel Hoople, who 

can be reached at 226–2860. This estimate was approved by Peter 

H. Fontaine, Deputy Assistant Director for Budget Analysis. 


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PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 2286, will restore the use of bail bonds to their historic use, namely solely to 

ensure the appearance of a defendant before a court as ordered. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8 of the Constitution. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 2286 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(d), 9(e), or 9(f) of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. Section 1 sets forth the short title of the bill 

as the ‘‘Bail Bond Fairness Act of 2007.’’

Sec. 2. Findings and Purposes. Section 2(a) sets forth certain 

findings. First, it notes that the sole purpose of bail in the United 

States has historically been to ensure the defendant’s physical 

presence before a court and that the bail bond would be declared 

forfeited only when the defendant failed to appear as ordered. Second, it notes that Federal judges have merged the purposes of bail 

with other conditions of release and that they rely on Federal Rule 

of Criminal Procedure 46(f) as authority to do so. Third, it notes 

that the courts’ reliance on Rule 46(f) has withstood repeated court 

challenges. Fourth, it notes that, as a result, the underwriting of 

bonds for Federal defendants has become virtually impossible. 

Section 2(b) sets forth the purposes of this Act. First, the Act is 

intended to restore bail bonds to their historical origin, that is subjecting bonds to forfeiture only when a defendant fails to appear 

before a court as ordered. Reducing the risk of forfeiture will enable third-party bond writers to help defendants attain pretrial release, which will give them a fairer opportunity to assist in their 

defense. Second, the Act is intended to preserve the judge’s the authority to revoke bail should the defendant fail to abide by non-appearance conditions of pretrial release. By revoking bail but not ordering bond forfeiture, the court retains authority to enforce all 

conditions of pretrial release without undue risk to the third-party. 

Sec. 3. Fairness in bail bond forfeiture. Section 3(a)(1) amends 

sections 3146(d) and 3148(a) of title 18 of the United States Code 

and Federal Rule of Criminal Procedure 46(f)(1) to prohibit a judicial officer from using bond forfeiture as a sanction for certain specified conditions related to pretrial release that are not related to 

the defendant’s appearance in court. 


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AGENCY VIEWS


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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

TITLE 18, UNITED STATES CODE 

* * * * * * * 

PART II—CRIMINAL PROCEDURE 

* * * * * * * 

CHAPTER 207—RELEASE AND DETENTION PENDING 

JUDICIAL PROCEEDINGS 

* * * * * * * 

§ 3146. Penalty for failure to appear 

(a) * * * 

* * * * * * * 

(d) DECLARATION OF FORFEITURE.—If a person fails to appear 

before a court as required, and the person executed an appearance 

bond pursuant to section 3142(b) of this title or is subject to the 

release condition set forth in clause (xi) or (xii) of section 

3142(c)(1)(B) of this title, the judicial officer may, regardless of 

whether the person has been charged with an offense under this 

section, declare any property designated pursuant to that section to 

be forfeited to the United States. The judicial officer may not declare forfeited a bail bond for violation of a release condition set 

forth in clauses (i)–(xi), (xiii), or (xiv) of section 3142(c)(1)(B). 

* * * * * * * 

§ 3148. Sanctions for violation of a release condition 

(a) AVAILABLE SANCTIONS.—A person who has been released 

under section 3142 of this title, and who has violated a condition 

of his release, is subject to a revocation of release, an order of detention, and a prosecution for contempt of court. Forfeiture of a bail 

bond executed under clause (xii) of section 3142(c)(1)(B) is not an 

available sanction under this section and such forfeiture may be declared only pursuant to section 3146. 

* * * * * * * 


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RULE 46 OF THE FEDERAL RULES OF CRIMINAL 

PROCEDURE 

Rule 46. Release from Custody; Supervising Detention 

(a) * * * 

* * * * * * * 

(f) Bail Forfeiture. 

(1) Declaration. The court must declare the bail forfeited 

if øa condition of the bond is breached¿ the defendant fails to 

appear physically before the court. 

* * * * * * * 

Æ 


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