In just two weeks, Missouri court rules governing how people are released before their trials will change, by order of the state Supreme Court.
The changes likely will be most apparent to those who have been charged with a crime, and are faced with the possibility of staying in jail because they can’t afford a bond.
“The problem is real,” Supreme Court Chief Justice Zel Fischer told lawmakers during his State of the Judiciary speech Jan. 30. “We all share a responsibility to protect the public — but we also have a responsibility to ensure those accused of crime are fairly treated according to the law, and not their pocket books. …
“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.”
Fischer said the Supreme Court’s new rules were written after a panel of about 40 people — including judges, prosecutors, public defenders, other defense attorneys, law professors and court officials — “spent countless hours identifying ways for improvement and working to devise common-sense modifications to our criminal justice system.”
For years, someone facing a criminal charge in a Missouri circuit or associate circuit court has been able to post a bond that allowed him or her to stay out of jail pending the next court hearing or trial.
The amount of that bond is set by the judge, based at least partly on the charges filed in the case (an assault or robbery charge gets a much higher bond than a shoplifting charge, for instance), the defendant’s previous criminal history and an assessment by the arresting officers about the defendant’s likelihood of staying in the community to face the charges, or to flee in an effort to avoid them.
Kansas City defense attorney J.R. Hobbs was one of three co-chairs of the Supreme Court’s committee.
“The purpose of bond is to make sure that a defendant appears in court,” Hobbs said, “and then it’s developed over time (with) a secondary purpose that the person, while on release, is not a threat to himself, the community or any alleged victim.”
But in Missouri, Fischer said in January: “Too many who are arrested cannot afford bail even for low-level offenses and remain in jail awaiting a hearing.”
As Hobbs explained: “The problem of going just to a money bond is that if you have somebody who is very poor and can’t make a $2,500 bond — while someone who is very wealthy could make a $100,000 bond — does that really address the issues of bond schedules, without any understanding of a defendant’s economic circumstance?
“So, that’s what led to a lot of discussion (by the committee) about, are there other ways of satisfying the purpose of bond, which is to make sure the defendant appears at trial and that the community and the alleged victims are not at-risk?”
Beginning July 1, the high court has told all other courts in the state they must modify their pretrial release processes.
Fischer said during his Jan. 30 State of the Judiciary address that the new process must begin with “non-monetary conditions of release, and (courts) may impose monetary conditions only if necessary and only in an amount not exceeding that necessary to ensure safety or the defendant’s appearance.”
He added: “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.”
The new rule doesn’t define what qualifies as a non-monetary condition, leaving that up to the judge and the local officials handling the individual cases.
Part of the new rule says: “The court shall set and impose the least restrictive condition or combination of conditions of release, and the court shall not set or impose any condition or combination of conditions of release greater than necessary to secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses.”
Cole County Associate Circuit Judge Cotton Walker, whose court likely will get the bulk of the local pretrial release decisions, because cases generally are filed first in his court, told the News Tribune: “We began instituting the policies required of the rule changes in advance of July 1st … to continue to lead the way for other circuits and, if necessary, identify any issues with implementation in our circuit, considering all the moving pieces.
“We began operating as if the rule change was in effect April 1st.”
For example, Walker said, his court — Division III — “now has three dockets per week to specifically handle cases of those in custody, instead of one docket per week.”
And he said the cases involving non-monetary release may be expedited to make sure the defendants don’t fall in the cracks.
Walker said the non-monetary release terms may be as simple as the existing rules that tell a defendant to have “no contact with the victim in a domestic assault case,” or “do not be around other (of your) co-defendants.
He said other options may include “follow up with mental health (or) substance abuse treatment,” even before the case goes to trial, and “do not consume or possess any alcohol or controlled substances.”
Cole County Sheriff John Wheeler added: “There are two different types of pretrial release.
“You have the one in which the suspect posts a bond, usually by a bondsman, through the judicial system.
“The other one is a court program that is managed by the judges (and) is usually a supervised release of suspects … within the Cole County Pretrial Release Program.”
Walker said defendants on pretrial release may be told to contact someone on the pretrial services staff on a scheduled basis — sometimes daily, sometimes less frequently.
He said that, while most defendants are from Mid-Missouri, “We’ve had people on pretrial services even from out-of-state on non-monetary conditions of release.”
Walker said some people are asked to wear a GPS monitor and — if charged for that — that becomes part of the non-monetary/monetary “mix” the new court rules allow.
He added it still is cheaper for the defendant than a bond may be.
Wheeler called the pretrial services a “decent program … that has done a sufficient job in balancing the public safety of the citizens versus the rights of the accused.”
Cole County Circuit Judge Dan Green said the proposed changes will have minimal effect in the 19th Judicial Circuit.
“Like many of the problems new rules or procedures are designed to combat, they simply do not exist in Cole County,” Green told the News Tribune. “The changes were proposed to address the perception that many presumed-innocent defendants were being held for long periods of time in county jails, waiting for a trial.
“This has not been an issue in Cole County, and the new rules will only codify what we have already been doing for decades.”
But, Rod Chapel told the News Tribune, that isn’t always the case.
He’s an attorney as well as the state president of the NAACP.
As an attorney, Chapel said he’s had several clients who “lost everything” because they couldn’t afford to pay a bond after being charged with a crime.
Two of those clients ended up pleading guilty so they could be released from jail.
He thinks the new rules will be good.
“I think they will at least ensure that if (the defendants) are not going to be a harm to other people, why would you be charging (them) money as they have been?”
He said there’s no reason to start with money as a means of release, “especially when working people have less of an (ability) to be able to come up with some of the figures that they’re talking about.”
Walker added: “We already have effective communication and cooperation within Cole County from our pretrial services program, law enforcement, the prosecutor, even defense counsel and other community resources.
“The more information judges have, the wider choices we have about conditions of release for arrested persons. The work of our pretrial services personnel provides us this information.”
While Cole County is a one-county circuit, the 13th Judicial Circuit covers Boone and Callaway counties.
Mary Epping is the 13th Circuit’s court administrator.
“The 13th Circuit utilizes bond investigations to evaluate bond and conditions of release that overlap with much of the new language in the rules,” Epping said. “Judges in Boone County have the benefit of an Adult Court Services department, which generates rapid and in-depth bond investigations evaluating the unique circumstances of each offender.
“These bond investigation reports, received and reviewed by judges, have been utilized for many years and already recommend appropriate bonds and conditions of release.”
The Supreme Court posted the proposed new rules in December, and Fischer’s announcement to lawmakers of the changes came a month after Missouri courts had been told to begin making them.
Some people worry the new rules will allow a court to release someone who should stay in jail until their trial.
“All of us can be victims. All of us can be defendants. All of us can have relationships with one or the other,” defense attorney Hobbs said.
“What’s important is to get a rule that applies fairly, whatever one’s personal circumstance. And the problem with just throwing someone in jail to make them appear is, it destroys a presumption of innocence.”
Fischer said part of the new rules says: “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 safety of the community or any person.”
Hobbs said no one on the commission was suggesting judges make pretrial release decisions without considering whether a person facing charges might pose some risk to the community if released from jail.
“All we’re saying is, there ought to be thought given as to whether non-monetary conditions can satisfy that concern, in addition to monetary conditions,” Hobbs said.
He also noted the committee’s recommendations, and the Supreme Court’s new rules, didn’t abolish the use of a cash bond nor the profession of bondsmen, “like some jurisdictions have. What we’re saying is, there ought to be a combination of factors looked at.”
Walker told the News Tribune: “This process of considering release of someone considered ‘dangerous’ has not changed. Our Constitution guarantees a presumption of innocence and a right to release (bail) in all cases except for capital offenses.
“Judges always carefully consider whether an individual poses a danger to the community, a crime victim or any other person when determining conditions of release — which may include monetary bonds.”
The same is true in Boone and Callaway counties, Epping said.
“With or without the language in the new rule — with or without bond investigations — every judge in the 13th Judicial Circuit makes every effort to set bond amounts and conditions of release that are fair to the accused and insure that everyone in our jails needs to be there in order to protect the public,” she said. “Therefore, the court will continue to utilize this process in evaluating bond, and conditions of release, in implementing the new rules.”