Two organizations connected with the bail bonds industry have questioned the Missouri Supreme Court's new rules regarding pre-trial release and the way those rules were proposed.
The rules went into effect July 1 — except for some proposed modifications which won't go into effect until next Jan. 1.
In an email to the News Tribune last week, the American Bail Coalition said the new rules "were conceived and put into effect by the high court in complete secrecy. Not only was the public locked out of the closed-door proceedings, there was neither input nor approval from the state legislature."
Jeff Clayton, the coalition's executive director, said Friday afternoon that the Supreme Court's "rules process is a joke compared to other states."
In one state, which he didn't identify, Clayton said, "All three branches of government appoint who's on the rules committee — ultimately, the Supreme Court makes the final decision."
In a June 14 letter to the Supreme Court, Clayton wrote: "We believe these rules should cease to become law until or unless a full public process is launched in order to study the bail system in Missouri.
"This committee or panel should be inclusive and represent a diversity of opinions and include presentation by national experts."
However, Kansas City defense attorney J.R. Hobbs — one of three people who co-chaired the Supreme Court committee that worked on the new pre-trial releases rules for more than two years — said in a Friday evening interview: "The Supreme Court, under Article V, could just pass the rules. They don't have to have any input.
"There's no requirement that (they) set a task force up."
Historically, the court has used a number of advisory committees to suggest rules or policy changes for the state's court system.
Missouri's Constitution says the state Supreme Court "may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The court shall publish the rules and fix the day on which they take effect, but no rule shall take effect before six months after its publication."
The Constitution doesn't give the Legislature or the executive branch any role in that rule-making process, although it does say: "Any rule may be annulled or amended in whole or in part by a law (passed by the Legislature and approved by the governor) limited to the purpose."
Creating the new rules
The court's new, pre-trial release rules were several years in the making.
In her Jan. 24, 2017, State of the Judiciary address, then-Chief Justice Patricia Breckenridge told the Legislature: "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."
She noted the Missouri Constitution allows an individual to 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."
And Breckenridge announced the creation of a task force to "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."
That 40-member Task Force on Criminal Justice included Missouri Corrections Director Anne Precythe, state Insurance Director Chlora Lindley-Myers, and representatives of judges, prosecutors, public defenders and other defense attorneys, law enforcement officials, academics, and court officials.
After numerous meetings, the task force late last year proposed changes in the court's existing rules, including a mandate that judges considering pre-trial release begin with "non-monetary" conditions for a defendant awaiting a trial on their charges, and courts may impose monetary conditions of release only if necessary — and only in an amount necessary to ensure public safety and the defendant's appearance at court hearings.
The court published the proposed new rules in December, which became effective July 1.
As then-Chief Justice Zel Fischer told the Legislature last January, in his last State of the Judiciary message: "Under the circumstances of each case, a judge must balance two constitutional imperatives — one to afford the accused an opportunity for pretrial release, and the other to insist on 'sufficient sureties' the defendant will appear in court.
"Judges also must balance statutory considerations for protecting a crime victim, a witness and the community from a defendant who poses a danger to them."
However, Clayton told the News Tribune last week, the new rules create an uneven playing field where the previous process, based on setting bonds to allow release from custody during the pre-trial period, was balanced.
"If they want to leave everything on a level playing field, why do they need these (new) rules?" he asked.
Hobbs countered: "When you say a level playing field, is it level for the guy who's unemployed, who is charged with passing a bad check, to set a $2,500 cash bond?
"Is that level, when, maybe, a recognizance bond would assure that he appear (in court) and is not a danger (to the community)?"
Jefferson City lawyer Chuck Hatfield represents the Missouri Bail Association, and told Fischer in a June 3 letter the court should make changes before the rules went into effect.
His letter proposed revising the rule "so that trial courts can order monetary bail when it is the least restrictive condition, rather than when non-monetary conditions will not ensure a defendant's appearance."
Hatfield's letter noted the proposed changes "would significantly curtail (judges') discretion by effectively foreclosing trial courts from imposing monetary bail unless there is no combination of non-monetary conditions that will ensure a defendant's release (or community safety)."
However, Hobbs reminded a reporter: "The whole genesis of this, by the way, is because there is ongoing litigation that says that, fundamentally, we expect equal protection under the law for all people in due process, and we need to look at things with a lens of not just rotely setting a money bond."
In its email last week, the coalition noted: "Rather than setting monetary conditions for release, the court now requires defendants be evaluated by a risk assessment algorithm to determine if they represent a danger to society.
"The risk assessment tool, which is a key component of the rule changes, determines whether or not an individual is 'safe' or 'dangerous.' If the person is deemed 'safe,' they are released for free pending trial. But if the tool concludes they are 'dangerous,' they are kept in jail with no recourse at all.
"The problem is that a growing number of studies across the U.S. show that risk assessment algorithms are flawed."
Hatfield's letter to Fischer on behalf of the Missouri Bail Association asked the court to delete "any reference to such risk assessment tool from the amended rule."
Hobbs said risk assessment has been suggested, but the Supreme Court has not approved its use.
"The risk assessment tool is an algorithm, and there are various models," he said, "and, if one is adopted by the court at some point, after a Missouri validation — even then it's only A factor for the court to consider.
"It's not going to be a system where it's the only factor that goes into whether one gets pre-trial release or bond."
Protecting bail bonds
Clayton acknowledged his group's financial interests in keeping bail bonds available.
"It's not our job to protect the bottom line — it's our job to protect bail as an option, and to allow our customers to use our services when they're the least restrictive form of release to guarantee someone's appearance in court," he explained.
Hobbs said the Missouri rule changes don't shut-out the bail bonding system.
"Unlike in Kentucky, (where) they've outlawed bondsmen, and there's a wholesale attack on cash bonds in some locales — that's not the model that we've proposed, so far, envisions," he said. "(The Missouri rules change) prioritizes non-monetary conditions first and then, when there is a cash bond, it ought to be tied to someone's individual financial circumstance, not just a rote bond schedule.
"You know, if you're Bill Gates and you have a $250,000 bond, that might be a lot different than if you're (someone with less money).
"The bond schedules don't do that — they just classify by offense, only."
Clayton said the state's new rules "really put hurdles in place for judges to impose monetary bail."
Hobbs said the new rules mean "you don't just routinely set a money bond. If (the judge) believes there must be a money component, (the rule asks) 'Can we talk about his monetary situation and set something reasonable?'"
The Supreme Court had no reaction to the two bail associations' concerns.