Since the July 1, 2019 Missouri Supreme Court ruling known as Missouri Bond Reform, some rural courts and law enforcement say some of those changes have actually made it more difficult for the criminal justice system.
When Rules of Criminal Procedure became law, it increased the workload on an already belabored Missouri judicial system and allowed many criminals back out on the streets to commit more crimes before they’ve been properly prosecuted for pending charges, critics say.
The initial purpose of the ruling is to protect the rights laid forth for Missourians in the Missouri Bill of Rights. Section 21 was left up to individual courts and states, “That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” It was up to the courts to determine what vague terms like excessive bail, excessive fines and cruel and unusual punishment mean.
The supreme court approached this ruling with a number of concerns regarding the rights of Missouri citizens. One of the biggest concerns was what some had begun to call “debtor prisons” because there were people in jail for something as small as a couple hundred dollar parking or moving violation, and because they were impoverished and couldn’t afford the fee, they would end up in jail, unable to bond out. This inequity was especially apparent in poor urban areas.
One of the provisions in the MSC 2019 decision was that defendants could not be held in jail solely on the basis that they could not pay their bond, and so other bond conditions were made. Rule 33.01 section (b) of the 2019 decision states, “When considering the least restrictive condition or combination of conditions of release to set and impose, the court shall first consider non-monetary conditions.”
Examples include things such as leaving the defendant in a designated person’s custody, placing restrictions on travel and associations with individuals, requiring the defendant check in regularly, tracking technology, imposing a curfew and requiring the defendant to seek employment.
“I think it has forced judges to be a little bit more reasonable, instead of iron-fisting people to stay in jail until they either plead guilty or have a jury trial,” says Judge Nathan Kelsaw (42nd Judicial District, Dent, Iron, Reynolds, Wayne).
But there is a flip side.
“If it’s the same judge conducting the ruling, I agree, it stays consistent,” Dent County Prosecutor Andrew Curley said. “My issue isn’t that, it’s that bond is a really tough decision when you really start thinking about it.”
Curley went on to point out how vastly nuanced that decision-making process is for judges.
“A $10,000 bond to me is totally different to someone who is totally indigent,” Curley said. “So, having a systematic way of determining bonds is hard.”
According to Curley, the crux of his issue with the ruling is not the various provisions in place to help citizens who are presumed innocent until proven guilty by the courts, but with what he believes to be an unreasonable imposition of a systematic approach that he believes, among other things, increases the chances for dangerous criminals to fall through the cracks of the court system and be let out on bond when they ought not be.
One of Curley’s main grievances with the 2019 MSC ruling is the specific timeframes that it imposes. According to Rule 22.07, which pertains to bonding out persons charged with felonies or misdemeanors, a defendant who has been arrested and confined must have an initial bond hearing within 48 hours of being incarcerated (excluding weekends and holidays).
Each step of the way, the prosecuting attorney is responsible for making an argument to the judge across from a public defender or private counsel about whether or not he believes the defendant should be released on bond.
Curley said he believes that timeframe is unreasonable, depending on the criminal history of the defendant. Criminal history cannot be used in determining a defendant’s guilt in court, however it can help to inform the court of whether the defendant may be considered a flight risk.
Curley said that sometimes he may not have time to adequately gather information in order to make his case against a defendant being released on bond, especially considering that it is only one case among a voluminous caseload that Curley has to remain knowledgeable on.
Meaning that, according to Curley, sometimes judges are left to make decisions about the character of defendants without adequate time for the appropriate information to be aggregated., which Curley believes makes it more difficult for judges to take into consideration the totality of a given case.
In addition to the within 48-hours provision for the initial bond hearing, another timeframe imposed upon bond hearing regulation is Rule 33.05. which states if a defendant remains detained after that initial hearing, a second bond hearing must take place as soon as practicable but no later than seven days after the initial hearing (excluding weekends and holidays). Before the MSC ruling, those initial appearances were originally scheduled on an appointed day of the week each week, and these secondary hearings previously had no set time frame within which a second hearing had to take place. This specific timeframe sometimes means that the second bond hearing is presided over by a different judge who may or may not be very familiar with the case.
“Here’s my issue, if I have a judge that comes in that hasn’t been following the case, he’s likely to change that bond,” Curley said.
Even if the defendant remains incarcerated at that time, depending on the charges, there may be future additional bond hearings available to the defendant.
“If the case is bound over to circuit, we’re going to get a new judge, and that new judge is also going to make that bond consideration,” said Curley.
According to Curley, a defendant is more likely to be released on bond with each following bond hearing because the judge is basically getting a one-sided argument in the defendant’s favor without consideration of the interests of the state or consideration of the victims part of the story.
“I’m not present when it’s happening, the victim’s not present when it’s happening,” Curley says.
All the judge has to really go off of is the word of the defendant and the charges against him or her and a written summary of the prosecutor’s opinion.
According to Curley, if that happens or if the defendant fails to appear in court, “we’re going to start this process all over again.”
When making his argument against a given defendant, the main things he is considering are the defendant’s likelihood to harm the public if released on bond.
“What I can tell you is that my experience has been, now I have inmates who would not have been released before that are now walking out amongst us,” said Curley.
Some in law enforcement concur.
According to Major Len Pabin of the Dent County Sheriff's Office, a suspect might be brought in with felony charges, but pretty swiftly, “He’s bonded out and can be back out there doing it again.”
What that often means is that a suspect might be out there committing the same crime before being properly tried in a court of law for thru current alleged crime(s), Pabin said.
Dent County Sheriff Bob Wells also spoke unfavorably of the ruling. “But it’s not local courts’ fault, they are working hard to follow the court rules that they have to.” Wells pointed out that each of these officials have sworn an oath to both the U.S. Constitution and the Missouri Constitution, and it’s the Missouri Supreme Court’s prerogative to rule on the interpretation that sets policy in the courts.
Salem Police Chief Joe Chase voiced similar concerns, describing it as “Draconian” and a “knee-jerk” reaction by the Missouri Supreme Court, pandering to lobbyists.
Chase said of the ruling, “I think it increases the load that law enforcement has to bear.” Chase also talked about what law enforcement often calls the “revolving door,” which he believes perpetuates crime.
“I believe people do better when they are held accountable,” said Chase. He said it makes it too easy for a criminal to continue committing crimes right up until their trial date.
Wells described it as a cycle that makes the job of law enforcement more difficult.
“It shortens that cycle,” said Wells, “making it more difficult to keep people who need to be in jail in jail. “
Curley stated that he is acutely aware of the difficult and frustrating position this often puts law enforcement in.
“I know that every time law enforcement has to execute a warrant it puts them in danger. It puts them in a position where they’re extremely vulnerable,” said Curley.
He described a hypothetical instance which could be a real situation.
“The traffic stop, where an individual has a warrant and the officer doesn’t know it yet. He’s going to put himself into a position of vulnerability just by walking up to that door,” he said.
Another thing that Curley also considers when positing his case against a given defendant is their likelihood of harming themselves, especially in cases related to substance abuse.
Curley told The Salem News that he can think of three cases in recent months when he has asked a judge not to release a defendant on bond because of the severity of substance abuse because he was afraid the defendant would be deceased. “Unfortunately, I’ve been correct all three times,” he said.
It’s hard to say exactly what impact this ruling is having on a state level, given that most of the relevant statistics take years to tabulate. When asked about the matter, Rep. Ron Copeland (District 143, Missouri State House, Oregon, Shannon, Reynolds, Dent), given his 28 years served with the Missouri Highway Patrol, pointed out that results should be watched for as a metric for determining the success of the MSC hearing. Copeland suggested looking at the percentage of convictions among people bonded out under this ruling, looking at the number of additional charges accrued by bonded out defendants and looking at whether or not the bonded out defendants are showing up for their court dates.
“I think if we look at those numbers, we’ll be able to see what kind of impact this is having,” he said.