"Bail Bond Fairness Act” Bad for Bail Recovery Agents

I agree. Our little brother Scott is soooooo eloquent.

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Kathy Blackshear
Blackshear Investigations
Blackshear Bail Bonds
Sales Associate, Prepaid Legal Services, Inc.
Walsenburg, CO

Proud Member of the AB Reject Club

Thanks ya'll.

I had a private telephone conversation with Bill Marx and thought I would offer the points publicly as well.
Thanks for the positive responses. We all work together and learn from each other through this website.

Thanks Phil!

Scott

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R.E. "Scott" MacLean III

"Leaders are like Eagles, you never see them in a flock, but one at a time"

Chesapeake Group Investigations, Inc.
Chesapeake Bail Bonds
877-574-0500
301-392-1100 (fax)
301-392-1900 (Office)

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.

Jeff Kirkpatrick

You forgot a few things....

Once PBUS has written legislation in the works....then it's only a matter of time before PBUS writes us BEA's out of work. PBUS officials are on record, stating publicly, that it is thier intention to do away with BEA's. Your organization cites the lawsuits, liabilities, the authority that BEA's have, etc all as reasons for the elimination of my industry. Your organization is also publicly on record, in years past, offering the plan of eliminating BEA's and allowing only active duty leo's re-apprehend fugitives.

So from a BEA's point of view....PBUS is our enemy. Dangling the carrot of more work is so thin and shallow it's a joke when you contrast it to your organizations publicly declared plan of the elimination of BEA's.

So this legislation is a good thing for the insurance companies, but not us free lance BEA's...no matter how much sugar you put on it.

I also contacted my congressional leaders and made an official request for them to vote "no" on this bill.

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River City Associates
Decatur, Al. 35601

I respect your opinion, but strongly disagree that it is sugar coating. I invite you to count the number of fugitives you have apprehended that were on Federal bonds as compared to those on bond in a State court. I am willing to bet that the number is less than one percent. The reason, there is little federal bail written and I cannot see how there is anywhere to go but up.

Don’t you think if the goal of PBUS on this Federal Bill was to write BEA’s out of work they would have? This bill is truly about holding defendants accountable for their appearance and not things like a curfew violation. Currently if a defendant fails to comply with their curfew or they test positive for drugs the bond can be forfeited regardless if the defendant appears or not. With the proposed BBFA it could only be forfeited if the defendant failed to appear and was not apprehended. Bail Agents are in the appearance business, not the performance business.

As a long time member of PBUS, I can tell you that I would never vote for any policy that would only allow active duty LEO’s to re-apprehend fugitives. If that happen there would be very few fugitives apprehended. Just look at the number of outstanding warrants at any given police agency, they simply do not have the time.

I am aware that there are some members of PBUS who have and do publicly oppose BEA’s and there always will be. Just like there are directors of pretrial agencies who publicly oppose commercial bail agents. I am not aware of any PBUS policy that calls for the elimination of BEA’s.

Thanks for helping me to better understand your position.
Jeff Kirkpatrick

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Heritage and Profession Together

J.G. Marshall
MARSHALL FUGITIVE SERVICE
Lic. # 2008-392
Moderator


Its the Irish in my mind that keeps me sane,
and the Irish in my heart that keeps me strong.

OK if that is the concern why would you oppose legislation that only seeks to increase the use of surety bonds in the federal system? I could see being concerned if the bill contained language that was detrimental to the BEA profession and in this bill I don’t see anything like that. Therefore, to oppose a bill that is positive for both the bail and the recovery industry out of concern for something that might happen in the future just doesn’t make sense to me.

To clarify, I don’t think the bond industry is going to be wonderful if this legislation passes, but I firmly believe it will be a little better off than it is today. I am not sure about you, but business is down. I know bail agents who have taken on a second job to keep things a float. This recession we are in is impacting all of our professions and I am looking for every additional opportunity available and if it is writing more federal bonds so be it.

When you say PBUS has this on-going campaign to eliminate private Bail Enforcement professionals can you help me understand this basis for this claim? I am not aware of any campaign by PBUS or any PBUS policy that has anything to do with the elimination of BEA’s.
I just reviewed the PBUS newsletters back to 2005 and the only items I found that were written regarding fugitive recovery were the following:

An article written by Dennis H. Sew about Hiring Quality Fugitive Agents and that the right fugitive recovery agent can make the difference between finding a skip and paying forfeiture.

Another article was about fugitive recovery agent Carl Tanner who went from hunting bail jumpers to singing opera at the Kennedy Center.
Les Sebring wrote an article about the increase in news stories involving bail recovery incidents. He commented on the weekend bounty hunter schools and wrote how several of the incidents that have become media stories were caused by some persons who were poorly trained or untrained. He also said to be fair and balanced, there are a number of "incidents" that were caused by bail agents themselves, and thus he said it is improper to blame it all on the "bounty hunters." Bottom line Les believes that training and education is critical for anyone doing recovery work.

The last comment was a note where Linda Braswell appointed Les Sebring to chair the Bail Enforcement Task Force whose mission is to create a model policy for bail recovery.

I just don’t find this on-going anti BEA campaign that PBUS is alleged to be behind. I am sure you and others have a basis for this belief, so please help me to understand where it originates from. As one who has been a BEA for 30 years I am a strong supporter of the bail recovery profession. I have had the good fortune to meet many great and talented BEA’s and in my bail business I have contracted the services of many throughout the years.

Thanks,
Jeff Kirkpatrick

Just a short one from me...

This is an extremely interesting and important debate... there are excellent points on both sides of this issue... I think 'bailmichigan' has some very valid points... also some strong stuff on the other side.... ie: MarshallSvc1; RWB; and of course Mdbtyhtr... Kathy, your in there too.

My only addition is the fact that I have experienced first hand, the court "forfeiture on conditions rather than appearance" as reflected in my post of the same name... and I can tell you that although my attorney and I prevailed in that action... it was enough to raise the hair on my neck and it damn sure got my attention.... and even after we won the case.... the court clerk entered the information incorrectly on the case... they had the defendant (me) losing and the plaintiff (the DA on the case) winning a judgment on forfeiture against me and my company.... the only reason I caught this was because I went into the records for a copy of the final disposition for my personal records... had I not seen that mistake within the 15 day limit given in the rules... it may have very well been upheld... and in the very least I would have had to petition the court again for ruling and a change reflecting added expenses and further court appearances.... I found this entire proceeding to be totally incompetent but what can you do?????? BE VERY AWARE AND DILIGENT IN YOUR BUSINESS.

As for Federal bonds... I don't write 'em, so I don't care about that issue, but it is very pertinent to this thread because it absolutely filters down to the state level... and that's were little guys like me... and maybe some of you...... earn our keep.

Also, being just a bondsman and not being involved in the FR end of our business (except when my buddies show up from out of state and ask for a little help... ) it doesn't effect me directly... although recovery is obviously tied to the bond business....

You know... "we are all cooking in the same pot and we all have a say in what goes in and what comes out."

So keep up the debate... I learn so much here...

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Bill Marx, Sr.
"FREE STATE BAIL BONDS"
"FREE STATE INVESTIGATIONS"
DCJS: 99-176979
Cell: 434-294-0222

"Endeavor to Persevere" "Lone Watie"

"Good judgment comes from experience, and a lot of that , comes from bad judgment" "Will Rogers"

_________________
Heritage and Profession Together

J.G. Marshall
MARSHALL FUGITIVE SERVICE
Lic. # 2008-392
Moderator


Its the Irish in my mind that keeps me sane,
and the Irish in my heart that keeps me strong.

Thanks Marshall for posting that...I was looking for something along those lines myself to answer his questions.

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River City Associates
Decatur, Al. 35601