By Echo Menges
Sweeping statewide jail bond reforms have been made by the Missouri Supreme Court (MSC), which have been confusing. NEMOnews Media Group is on a mission to understand these reforms and adequately explain them to our readers throughout the region by publishing a series about them in all of our publications and online. This article is the first installment of the effort to better explain what “pretrial release reform” is, where it came from, how it works and who is affected. So, here goes.
What’s going on?
Besides presiding over and issuing decisions and opinions on a myriad of cases, the MSC oversees all of the courts in the state, which includes the courts in our individual counties, by setting all of the “court rules” statewide. These court operating rules layout everything from how court is conducted to the duties of each officer of the court (judge, jury, council, court reporter, etc.).
Article V Section 5 of the Missouri Constitution basically entrusts the MSC justices to be the court policy and procedure writers for the entire Missouri judicial system.
At the end of 2018 and the beginning of 2019, the MSC issued orders changing some court rules and setting some new court rules into motion, which took effect on July 1, 2019. These court rule changes have brought sweeping reform where jailing defendants (people charged with crimes) is concerned – especially those unable to post high bond amounts.
The Backstory – Why is this happening?
Then Chief Justice Patricia Breckenridge briefly mentioned the effort to tackle pretrial release reform during her State of the Judiciary address on January 24, 2017, while introducing the state to a special task force charged with identifying problems built into the Missouri court system and recommending needed changes saying:
Our next goal is to improve pretrial incarceration practices. Incarcerating persons simply because they are too poor to post bond needs to be examined in both municipal and criminal cases. Under our Missouri Constitution, an individual may be incarcerated before trial only when charged with a capital offense; when a danger to a crime victim, a witness, or the community; or a flight risk.
All other persons are entitled to reasonable conditions of release prior to trial, based on the particular circumstances of their cases.
Our cities and counties incur costs for pretrial incarcerations of people who simply are poor. There are individual and societal consequences from these unwarranted pretrial incarcerations. The consequences impact the defendants, their families and, ultimately, the state. Defendants lose not only their freedom but also their ability to earn a living and to provide for loved ones. Children may even come into state custody, because incarcerated parents are not home to care for them. And – after only three days in jail – the likelihood that an individual will commit future crimes also increases.
A Supreme Court task force will examine how other states and cities have addressed the problem of unwarranted pretrial incarceration and recommend changes to our practices. We look forward to sharing what we learn with you and working together to enact common-sense reforms.
Pretrial release was again highlighted one year later when it was mentioned by then MSC Chief Justice Zel Fischer during the State of the Judiciary address on January 24, 2018. The Chief Justice told the Missouri General Assembly in Jefferson City:
Last June (of 2017), the Court established a task force focused broadly on criminal justice.
This group is led by Judge Michael Noble of St. Louis, Christian County Prosecutor Amy Fite and defense attorney J.R. Hobbs of Kansas City. They will recommend evidence-based risk-assessment tools for determining a defendant’s suitability for pretrial release; recommend ways to improve how courts impose fines, fees and costs; and identify technological opportunities to improve notice, compliance and public safety.
These efforts are part of broader national movement away from bail release decisions based on financial conditions toward considerations of the risks posed by individual defendants. The national experts suggest there are ways to provide effective screening and supervision to monitor those defendants deemed safe for release during the pretrial period.
It seems obvious and important that – before a trial is held and guilt or innocence is determined – we reserve our jail space for those who pose the most danger to the community or risk of fleeing the jurisdiction, and not those who simply may be too poor to post bail. Studies show even short stints in jail increase the likelihood of missing school or losing jobs and housing. And, of course, pretrial supervision costs a local community substantially less than pretrial incarceration.
Justice Fischer further elaborated during an address at the annual meeting of The Missouri Bar and the Judicial Conference of Missouri in St. Louis on September 27, 2018, saying, “Earlier this year, the 5th Circuit Court of Appeals ruled the cash bail system in Texas’ most populous county, and the third biggest in the whole nation, violates the due process and equal protection rights of defendants charged with misdemeanor offenses who simply could not afford to post bail. And just last month, California enacted legislation abolishing cash bail. Washington, D.C., already has a cashless bail system, and states like New Jersey have reduced their reliance on monetary bail. The discussion continues in Missouri, where we all share a responsibility to protect the public but ensure those accused of crime are treated fairly and equitably according to the law.”
During the same address, Justice Fischer also said, “Too often, though, bail is based on an outdated schedule handed down from one well-meaning judge to another. While our judges generally have considered an accused individual’s circumstances appropriately in response to a motion to reduce bail, even relatively short periods of jail time can cause long term detrimental effects. We have charged the task force with finding ways to move away from the use of bail schedules to help ensure the determinations – and conditions – of pretrial release are made more accurately and with the best information, and are not based on race, gender, ethnicity or economic conditions. I look forward to the time when those who are most likely to receive probation at the resolution of their cases but do not have enough money to post bail at the outset are released on their own recognizance with appropriate conditions, and when those who truly pose a danger to crime victims or our communities will be held pending trial regardless of their wealth.”
Less than three months after making those remarks, Justice Fischer and the rest of the MSC, rolled out the new changes in the form of an MSC Order dated December 18, 2018, with an effective date of July 1. On February 13, 2019, the MSC issued a new order after correcting a typographical error in the December 2018 order, sticking to the effective date of July 1, 2019.
Just ahead of the pretrial release reform rules going into effect, the MSC issued another order on June 25 rewriting and further elaborating on some of the rules set forth in the corrected February order, then vacated that order and issued a new order on June 30, which caused a considerable amount of confusion among court personnel locally and the general public at large.
I’m confused. Are the new rules in effect or not?
Yes, according to a representative of the Missouri Supreme Court, the February order did go into effect on July 1. The changes made to the new rules on June 30 will go into effect on January 1, 2020, because there has to be a six month period between the time a MSC order is given and the time the order can go into effect, which is laid out in Article V Section 5 of the Missouri Constitution.
Also, the MSC Task Force on Criminal Justice issued a statement on July 12 explaining, yes, the new rules are in effect. Yes, some modifications were made on June 30, which go into effect on January 1. They wrote:
Following Chief Justice Fischer’s announcement, and during the more than six months before the changes became effective, numerous judges, prosecutors, defense attorneys, law enforcement officers, and other individuals and entities made timely and notable suggestions concerning the rule changes. The Task Force considered these suggestions and proposed certain modifications to the rule changes. Once again, the Task Force recommended the Supreme Court adopt these corrections, and the Court adopted many, if not most, of the recommended corrections in late June. The rule changes the Court adopted in December 2018 became effective July 1, 2019, while the modifications the Court subsequently adopted will become effective January 1, 2020.
What are the changes?
Then MSC Chief Justice Fischer’s remarks during the State of the Judiciary address to a joint session of the Missouri General Assembly in Jefferson City on January 30, 2019, laid out the following major changes:
1) The court must start with non-monetary conditions of release and may impose monetary conditions only if necessary and only in an amount not exceeding that necessary to ensure safety or the defendant’s appearance.
2) The court may not order a defendant to pay any portion of the costs of any conditions of release without first considering how to minimize or whether to waive those costs.
3) A court may order a defendant’s pretrial detention only if it determines – by clear and convincing evidence – that no combination of non-monetary and monetary conditions will ensure (the) safety of the community or any person.
4) The new rule also limits how long a defendant may be detained without a court hearing, and ensures a speedy trial for those who remain in jail.
“These new rules that went into effect on July 1, for the most part, pertain to letting somebody out of jail on bond while their case is pending,” said Kevin Locke, District Defender for the Missouri Public Defender’s Office in Kirksville. “I think the spirit behind it is that you’re innocent until you’re proven guilty and the only purpose of bond is to ensure that you’re going to appear for trial when you’re supposed to, ensure you’re going to appear for court when you need to, and to make sure that you don’t pose a danger to the general public or any particular person.”
The NEMOnews Media Group is exploring these pretrial release reforms and how they affect defendants, courts, court personnel, law enforcement, jails and communities throughout the region.
Look for continued coverage on this topic and more detailed breakdowns of the court rule changes in upcoming editions of our newspapers and on our website, nemonews.net.