II 

108TH CONGRESS 

1ST SESSION S. 1795 

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

Procedure with respect to bail bond forfeitures. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 29, 2003

Mr. GRAHAM of South Carolina introduced the following bill; which was read 

twice and 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 2003’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

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

8 findings: 

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

10 United States was to ensure the defendant’s physical 
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1 presence before a court. The bail bond would be de2 clared forfeited only when the defendant actually 

3 failed to appear as ordered. Violations of other, col4 lateral conditions of release might cause release to 

5 be revoked, but would not cause the bond to be for6 feited. This historical basis of bail bonds best served 

7 the interests of the Federal criminal justice system. 

8 (2) Currently, however, Federal judges have 

9 merged the purposes of bail and other conditions of 

10 release. These judges now order bonds forfeited in 

11 cases in which the defendant actually appears as or12 dered but he fails to comply with some collateral 

13 condition of release. The judges rely on Federal Rule 

14 of Criminal Procedure 46(e) as authority to do so. 

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

16 has withstood repeated court challenges. In cases 

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

18 Cir. 1995), the rule has been held to authorize Fed19 eral courts specifically to order bonds forfeited for 

20 violation of collateral conditions of release and not 

21 simply for failure to appear. Moreover, the Federal 

22 courts have continued to uphold and expand the rule 

23 because they find no evidence of congressional intent 

24 to the contrary, specifically finding that the provi-
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1 sions of the Bail Bond Act of 1984 were not in2 tended to supersede the rule. 

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

4 Federal defendants has become virtually impossible. 

5 Where once the bail agent was simply ensuring the 

6 defendant’s physical presence, the bail agent now 

7 must guarantee the defendant’s general good behav8 ior. Insofar as the risk for the bail agent has greatly 

9 increased, the industry has been forced to adhere to 

10 strict underwriting guidelines, in most cases requir11 ing full collateral. Consequently, the Federal crimi12 nal justice system has been deprived of any mean13 ingful bail bond option. 

14 (5) In the absence of a meaningful bail bond 

15 option, thousands of defendants in the Federal sys16 tem fail to show up for court appearances every 

17 year. When this happens, the expense and effort by 

18 Federal law enforcement officers to investigate and 

19 apprehend defendants is wasted and the overall in20 terests of justice are thwarted. 

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

22 (1) to restore bail bonds to their historical ori23 gin as a means solely to ensure the defendant’s 

24 physical presence before a court; and 
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1 (2) to grant judges the authority to declare bail 

2 bonds forfeited only where the defendant actually 

3 fails to appear physically before a court as ordered 

4 and not where the defendant violates some other col5 lateral condition of release. 

6 SEC. 3. FAIRNESS IN BAIL BOND FORFEITURE. 

7 (a) IN GENERAL.—

8 (1) FAILURE TO APPEAR.—Section 3146(d) of 

9 title 18, United States Code, is amended by insert10 ing at the end the following: ‘‘The judicial officer 

11 may not declare forfeited a bail bond for violation of 

12 a release condition set forth in clause (i) through 

13 (xi), (xiii), or (xiv) of section 3142(c)(1)(B).’’. 

14 (2) VIOLATION OF A RELEASE CONDITION.—

15 Section 3148(a) of title 18, United States Code, is 

16 amended by inserting at the end the following: ‘‘For17 feiture of a bail bond executed under clause (xii) of 

18 section 3142(c)(1)(B) is not an available sanction 

19 under this section and such forfeiture may be de20 clared only pursuant to section 3146.’’. 

21 (b) CRIMINAL PROCEDURE.—Rule 46(e)(1) of the 

22 Federal Rules of Criminal Procedure is amended by strik23 ing ‘‘there is a breach of condition of a bond’’ and insert-
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1 ing ‘‘the defendant fails to appear physically before the 

2 court’’.

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