Jeff Kirkpatrick, Executive Vice President of the Professional Bail Agents of the United States, responds to L. Scott Harrell’s opinion on the “Bail Bond Fairness Act:”
I see it from a different position. The Bail Bond Forfeiture Act will only increase the BEA’s business as a result of a larger federal bond market. More bonds written can only mean more recoveries needed.
Historically, the sole purpose of bail in the United States was to ensure the defendant’s physical presence before a court. The bail bond would be declared forfeited only when the defendant actually failed to appear as ordered. Violations of other, collateral conditions of release might cause release to be revoked, but would not cause the bond to be forfeited. This historical basis of bail bonds best served the interest of the federal criminal justice system.
Currently, however, federal judges have merged the purposes of bail and other conditions of release. These judges now order bonds forfeited in cases in which the defendant actually appears as ordered, but fails to comply with some collateral condition of release. The judges rely on Federal Rule of Criminal Procedure 46(e)(1) as authority to do so.
Federal Rule of Criminal Procedure 46 (e)(1) has withstood repeated court challenges. In cases such as United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995), the rule has been held to authorize federal courts specifically to order bonds forfeited for violation 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 that the provisions of the “Bail Reform Act of 1984” were not intended to supersede the rule.
As a result the underwriting of bonds for federal defendants has become virtually impossible. Where once the bail agent was simply ensuring the defendant’s physical presence, he/she now must guarantee the defendants general “good behavior.” 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 option.
In 1997 then Congressman Bill McCollum, now Florida’s Attorney General, introduced in the 105th Congress legislation addressing this problem. The “Bail Bond Fairness Act of 1997” (H.R. 2134) 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.
In the 107th Congress, the legislation was reintroduced as “The Bail Bond Fairness Act of 2001”. The legislation attracted wide bi-partisan support including 21 cosponsors. Then “The Bail Bond Fairness Act of 2003”, when introduced with additional cosponsors, contained provisions identical to the two earlier efforts mentioned, directly amending Federal Rule of Criminal Procedure 46(e). Under the amendment, 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.
Additionally, the “Bail Bond Fairness Act of 2003” contained provisions identical to the two earlier legislation mentioned, directly amending the “Bail Reform Act of 1984” (BRA), 18 U.S.C. 3141-3156. Such amendments are necessary and appropriate to accomplish the bill’s purposes. Amending the rule alone would not divest judges of the authority they now exercise.
Even without the authority of Federal Rule of Criminal Procedure 46 (e)(1), judges have authority under the BRA to declare bail bonds forfeited for a failure to appear as required by “the conditions of release” (18 U.S.C. 3142(xii), (xiv).
Additionally, judges have authority under section 3148 of the BRA to impose sanctions for violations of a condition of release. Although section 3148(a) specifically lists available sanctions as “revocation of release, an order of detention, and a prosecution for contempt of court, “ decision such as Vaccaro, supra, have found that the list is not exclusive of other sanctions, including forfeiture of any bond executed.
Thus, The “Bail Bond Fairness Act of 2007” will also amend sections 3146(a) and 3148 of the BRA. Section 3146(a) would be amended to provide, essentially, that a judge could not declare a bond forfeited based on a violation of any condition of release, except for his actual failure to appear physically before the court. Section 3148(a) would be amended to provide that forfeiture of a bail bond is not an available sanction for violation of a release condition.
THE BAIL BOND FAIRNESS ACT WILL DO THE FOLLOWING:
1. The bill mandates that a bail bond may only be forfeited if a defendant fails to appear in court as ordered. If the defendant violates a condition of bail, for example, use of narcotic drug, failure to maintain a job, travel beyond a certain area, the defendant’s bail may be revoked and they would be returned to jail. The cash value of the bond posted by the bail agent cannot be forfeited for this violation of condition.
2. This legislation allows professional bail agents to return to the federal court system to provide bail for defendants. Bail agents have been locked out of the federal system since the 1980’s by the “violation of conditions” interpretation, as a bail agent cannot guarantee behavior.
3. The bill allows bail to become available to all defendants, not just those with significant assets. The bail agent system allows a broader spectrum of defendants to have the benefit of pretrial release, not just those who are affluent.
THE BAIL BOND FAIRNESS ACT DOES NOT DO:
1. The bill does not change the judge’s authority to set or restrict bail. The judge still must make the determination as to the defendant’s flight risk, a threat to the community, etc.
2. The bill does not change the bail process in any way, it merely restricts forfeitures to the question of appearance. A bail bond cannot be forfeited unless the defendant has failed to appear in court.
3. The bill does not put more criminals back into the community. The judge must still make the moral decision regarding pretrial release in terms of amount of bail and conditions.