THE COURTS

[234 PA. CODE CH. 5]

Application of Bail Deposit to Fines, Costs, Restitution

[33 Pa.B. 6408]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 535 (Receipt for Deposit; Return of Deposit) to make it clear that the court official who accepts a deposit of bail may not inquire of the depositor whether he or she consents to have the deposit retained to be applied toward the defendant's fines, costs, or restitution, if any. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comment to the rule. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed amendment precedes the Report. Additions are shown in bold; deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminalrules@pacourts.us

no later than Friday, January 23, 2004.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 5.  PRETRIAL PROCEDURES IN COURT CASES

PART C(2).  General Procedures In All Bail Cases

Rule 535.  Receipt for Deposit; Return of Deposit.

   (A)  The issuing authority or the clerk of courts who accepts a deposit of cash in satisfaction of a monetary condition of bail shall give the depositor an itemized receipt, and shall note on the transcript or docket and the bail bond the amount deposited and the name of the person who made the deposit.

   (1)  When the issuing authority accepts such a deposit, the deposit, the docket transcript, and a copy of the bail bond shall be delivered to the clerk of courts.

   (2)  The individual accepting a bail deposit shall not inquire of the depositor whether he or she consents to have the deposit retained to be applied toward the defendant's fines, costs, or restitution, if any.

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Comment

   [This rule is not intended to change current practice.

   A] Paragraph (A) was amended in 2004 to make it clear that the clerk of courts or other official accepting a deposit of cash bail is not permitted to request that the depositor agree to have the cash bail deposit retained after the full and final disposition of the case to be applied toward the payment of the defendant's fines, costs, or restitution, if any. See, e.g., Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978), which held that a deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines. [See Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).]

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   Official Note:  Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended ____, 2004, effective ____, 2004.

Committee Explanatory Reports:

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   Report explaining the proposed changes to paragraph (A) of the rule published at 33 Pa.B. 6409 (December 27, 2003).

REPORT

Proposed Amendment to Pa.R.Crim.P. 535

APPLICATION OF BAIL DEPOSIT TO FINES, COSTS, RESTITUTION

I.  Introduction

   The Criminal Procedural Rules Committee is proposing that Pa.R.Crim.P. 535 (Receipt for Deposit; Return of Deposit) be amended to provide in the text of the rule the specific prohibition that the court official who accepts a deposit of bail may not inquire of the depositor whether the depositor consents to have the cash bail deposit retained to be applied toward the defendant's fines, costs, or restitution, if any. This proposed amendment is not a change in the current law concerning the use of bail money deposits, but rather is a clarification of the provision in the Rule 535 Comment cross-referencing Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978), in which the Court held that ''a deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines.''¹

   The Committee undertook a review of the issue of using monetary bail deposits to pay a defendant's court costs and fines following an inquiry from the Common Pleas Court Management System (CPCMS) staff whether the monetary bail deposit may be retained to offset the defendant's fines, costs, restitution, and attorney's fees. The CPCMS staff noted monetary bail deposits are being retained for this purpose in some judicial districts notwithstanding the language in the Rule 535 Comment, and these judicial districts asked that the CPCMS be designed to accommodate the practice.

II.  Discussion

   The Committee approached the issue from two perspectives: (1) whether the practice in some judicial districts of using bail deposits to offset fines, costs, and restitution ispermissible under the rules and (2) if not, whether the rules should be amended to permit the practice. From a review of the Criminal Rules and law, the members concluded that the practice is contrary to the purpose of bail, which is to ensure a defendant's appearance at all court proceedings, and conflicts with Rule 535(D), which provides that the deposit shall be returned to the depositor, less any bail-related fees or commissions authorized by law, and the reasonable costs, if any, of administering the percentage cash bail program.

   In considering whether Rule 535 should be amended to permit a court official to ask a bail depositor to agree to the use of the bail deposit to offset fines, costs, and restitution, the members identified a number of practical concerns about such a practice:

   (1)  using bail as an offset is contrary to the purpose of bail;

   (2)  requesting the depositor to agree may be coercive on and confusing to the bail depositor, who frequently will not fully understand the nature and consequences of the agreement he or she is being asked to make;

   (3)  requesting the defendant's agreement easily could become an improper condition of release on bail;

   (4)  permitting the practice could lead to the unintended and unacceptable collateral consequences of police officers no longer exercising their discretion to release defendants pursuant to Rule 519(B) or bail authorities no longer utilizing ROR or conditional release in order to ensure the collection of fines and costs; and

   (5)  such a practice is inequitable and unfair because, for example, some defendants are given ROR and others are required to post a monetary condition of bail for the same offenses, such as when you have a resident defendant and a non-resident defendant.

   In view of these considerations, the Committee agreed the rules should not be amended to permit the practice; rather, the rules should be amended to include a specific prohibition against the practice. The Committee further agreed the amendment should be incorporated into the text of Rule 535 and should be limited to a prohibition on the request for consent to use the bail deposit to offset fines, costs, and restitution at the time the monetary bail deposit is made,² leaving the questions about when, if ever, the bail deposits may be used to offset fines, costs, and restitution to the courts.³

   The proposed new language being added is new paragraph (A)(2), with a correlative explanatory paragraph added to the current provision in the Comment citing Commonwealth v. McDonald. In addition, although the new provision is not a change in the intent of the rules, because it is a change in what is the current practice in some judicial districts, the Committee agreed the first sentence of the Comment that provides ''this rule is not intended to change current practice'' should be deleted.

[Pa.B. Doc. No. 03-2443. Filed for public inspection December 26, 2003, 9:00 a.m.]

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¹  This provision was added to the bail rules in 1995 as part of the general reorganization and revision of the bail rules. See Committee explanatory Final Report, 35 Pa.B. 4116 (September 30, 1995).

²  The Committee also agreed to advise the Administrative Offices of Pennsylvania Courts (AOPC) that, to ensure compliance with the rules concerning using bail to offset fines, costs, and restitution, there should not be any type of form either sanctioned by the rules or AOPC or produced by the CPCMS that could be used to obtain the consent of the depositor.

³  The members also discussed the practice of some attorneys entering into an agreement with their client for the use of the bail deposit for attorneys' fees. Because this is an agreement between the attorney and the defendant, the Committee did not think the practice should be addressed in the rules.

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