                                     FINAL REPORT1


                  Proposed Amendments to Pa.Rs.Crim.P. 528 and 535

    USE OF BAIL MONEY FOR PAYMENT OF RESTITUTION, FEES, FINES, AND
                               COSTS


       On December 8, 2014, effective February 9, 2015, upon the recommendation of
the Criminal Procedural Rules Committee, the Court amended Rule 528 (Monetary
Condition for Release of Bail) and Rule 535 (Receipt for Deposit; Return of Deposit) to
provide (1) procedures for applying bail monies that would be returnable to the
defendant after full and final disposition of the case to the defendant’s outstanding
restitution, court fees, fine, and costs in the current case and (2) notice to depositors to
warn of the possibility of the loss of security deposited.
       The Committee had examined procedures that would permit retention of a
defendant’s bail money that otherwise would be returnable to the defendant after full
and final disposition of the case in order for it to be applied to the defendant’s
outstanding restitution, court fees, fine, and costs. The Rules of Criminal Procedure
traditionally have precluded directly applying bail money in this manner, based on the
concept that the purpose of bail is to ensure the presence of the defendant during the
pendency of the case and not to obtain a “deposit” on future assessments. However,
the Committee concluded that a change that would permit the retention of returnable
bail money to satisfy a defendant’s existing obligations to the court is a valid exercise of
the rule-making authority. In addition, such a change is a potentially useful tool for the
more efficient collection of owed moneys, including restitution, reducing collection costs
for the court and even for the defendant who would otherwise face additional costs
where the court is forced to seek collections processes.

1
  The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.



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       In reaching this conclusion, the first question that the Committee had considered
was whether distribution of bail money in this manner fell within the purview of the Rules
of Criminal Procedures. As part of this review, the Committee examined the current law
in Pennsylvania on the return of bail, as well as the practice in other jurisdictions with
regard to this question.
       Under the common law, the purpose of bail was to ensure the appearance of the
defendant and courts did not have the inherent power to apply bail money for another
purpose. In terms of constitutional concerns, the Eight Amendment of U.S. Constitution
prohibits excessive bail. A U.S. Supreme Court case, Cohen v. United States, 7 L.Ed.
518, 82 S.Ct. 526 (1962), held that conditioning bail on the payment of a fine is
excessive and in violation of the Eighth Amendment.
       Several decades after the Cohen decision, a federal statute, 28 U.S.C. §2044,
was adopted that permitted the use of deposited bail money to be applied to a
defendant’s costs, fines, restitution and other assessments. Constitutional challenges to
this provision have been rejected because, unlike the Cohen case, Section 2044 does
not precondition bail on the payment of any fine but rather is a procedural mechanism
by which the court, after the defendant has appeared and the purpose of bail has been
served, may disburse deposited money to those with claims on the funds. See United
States v Higgins, 987 F.2d 543 (1993).
       The Committee’s research revealed that, in many states, courts have allowed the
application of bail to fines or costs. Numerous states also have adopted statutes
authorizing this practice. See, e.g., California Penal Code §1297, Florida Statutes
Annotated §903.286, Illinois Complied Statutes §5/110-7(f), Minnesota Statutes
Annotated §629.53, Nevada Revised Statutes §178.522, New York Criminal Procedure
Law §420.10(1)(e), Tennessee Code §40-11-121, Wisconsin Statutes §969.03(4). In
instances where specific statutory authority existed, courts have been inclined to allow
the application of the bail to fines or costs. For example, in State v. Iglesias, 185 Wis.
2d 118, 517 N.W.2d 175 (1990), cert. den. 513 U.S. 1045 (1994), the Wisconsin
Supreme Court found that bail is not excessive if it is used for a purpose which the


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legislature has deemed to be a compelling state interest and the amount is not
excessive relative to the interest sought to be furthered.
       Rather uniquely, Pennsylvania’s Bail Statute delegates all authority over bail to
the Supreme Court through its rule-making authority. Section 5702 of the Judicial
Code, 42 Pa.C.S. §5702, provides:
       Except as otherwise provided by this title and the laws relating to the
       regulation of surety companies, all matters relating to the fixing, posting,
       forfeiting, exoneration and distribution of bail and recognizances shall be
       governed by general rules.

       While there are no Pennsylvania cases addressing the propriety of retaining
returnable bail money for payment of fines, costs, or restitution, there have been a few
cases that dealt with certain aspects of this issue, usually involving cases in which third
parties were seeking the return of money they had posted on behalf of a defendant. For
example, in Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978), the Court
held that the trial court erred in refusing to return the bail deposit after the defendant
was taken into custody after allegedly committing a new offense, concluding that the
bail was revoked when the defendant was placed in custody, and the trial court no
longer had the authority to retain it. The Court specifically reserved judgment on the
question of “whether and to what extent the Rules of Criminal Procedure allow bail
deposits to be applied to the collection of fines imposed upon the defendant.” FN. 5,
476 Pa. at 222, 382 A.2d. at 126.
       Based on the foregoing analysis, the Committee initially developed a proposal,
which was published for comment at 42 Pa.B. 6253 (October 6, 2012), that would have
amended Rule 535 and revised the Comment to Rule 528 to permit the clerk of courts
to automatically apply any bail monies that otherwise would be returnable to the
defendant after full and final disposition of the case to any of the defendant’s
outstanding restitution, court fees, fines, costs, and bail judgments. The proposal would
have been limited to only money that has been deposited by the defendant and would
have permitted relief where its application would work a hardship on the defendant.
       Following publication of this proposal, the Committee received further direction
from the Supreme Court of Pennsylvania to narrow the scope of the proposal by

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requiring the prosecution to make a motion for holding deposited funds for payment of
outstanding restitution, fees, fines, and costs assessed in the case for which the deposit
had originally been made. Additionally, the exemption for third party sureties and for
cases in which the defendant would suffer an undue hardship were to be more explicitly
stated and fuller notice be provided to the depositor of the potential loss of the deposit.
       The amendments therefore now afford enhanced protection to third party
depositors by requiring detailed notice that the bail authority must provide to depositors
to warn them of the possibility of the loss of security deposited if they allow the
defendant to be the named depositor. Rule 528 has been amended to move into the
rule text the language currently in the Comment that describes the manner by which a
depositor may be named and the consequences for a third party of allowing the
defendant to be named depositor when the third party has supplied the bail money,
including the possibility of the money being applied to assessments. This notice
requirement is reiterated in Rule 535(B).
       Additionally, a new paragraph (E) has been added to Rule 535 that establishes
the procedures for retaining the bail money. A motion by the attorney for the
Commonwealth is required before the bail money can be retained and can only be
retained for the payment of assessments placed on the case for which the money had
originally been deposited with the defendant being the named depositor. The
paragraph also contains the exemption when the defendant shows that retention of the
bail money would be a hardship.
       Additionally, the current paragraph (A)(4) of Rule 535 that prohibits inquiring
whether the defendant consents to applying deposited bail money towards fines, costs,
etc. has been removed because the defendant’s consent to having the bail money
retained is no longer needed if the defendant was the named depositor and third party
depositors are to be provided with more detailed notice of the potential consequences.
       The Comment to Rule 535 has been revised to describe the rationale and basis
for this change as well as cross-referencing the Court’s Uniform Disbursement
Schedule that details the manner in which the retained money would be dispersed. The




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Comment also states that the new procedures would not apply to cases before a
magisterial district judge unless the parties agree.
       There was a concern raised by the Committee that some counties may be
retaining bail presently, despite being contrary to the rules, so language has been
added in the Rule 535 Comment that any local practice that varies from that in Rule 535
is inconsistent with the statewide rules.




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