Taking on Cash-Bail Policies, Missouri Supreme Court Aims to End Debtor's Prisons

The Missouri Supreme Court building in Jefferson City. - FLICKR/DAVID SHANE
The Missouri Supreme Court building in Jefferson City.

In Missouri, the fight to overturn practices that force defendants to serve jail time before they've been found guilty of a crime is largely waged inside the courts themselves. In recent years, lawyers from both the ACLU and ArchCity Defenders have filed numerous lawsuits challenging the cash-bail system that they argue has created unconstitutional systems of debtor's prisons.

But now a call for reform is coming from the court itself. On Wednesday, the Missouri Supreme Court revealed new policies that directly challenge the cash-bail system within the state court system. That could mean big changes for the circuit courts handling misdemeanors and felonies in St. Louis city and all of Missouri's 114 counties.

In his annual State of the Judiciary address, Chief Justice Zel Fischer announced the new policies after noting that many defendants can't afford bail for even low-level offenses.

"Though presumed innocent," Fischer said, "they lose their jobs, cannot support their families and are more likely to reoffend."

The new policies, which go into effect July 1, would require local courts to consider defendants under the presumption that no cash bail should be required for their release. The rules would also put a cap on how long a defendant could languish in jail without a hearing.

Fischer described the new policies "extensive and meaningful," and he credited the changes to the Supreme Court's year-long research into the issue, which has included conversations with "judges, prosecutors, defense attorneys, law professors and court officials."

The result, Fischer said, will be a system that balances the legal system's obligation to provide defendants the opportunity for pre-trial release while still ensuring that the defendant will appear in court.

Listing "highlights" of the new policies, Fischer described a new rule that would instruct courts to first consider non-monetary conditions for release. Cash bail could only be imposed "if necessary," Fischer said, and even then would be capped at "an amount not exceeding that necessary to ensure safety or the defendant’s appearance."

The other policies Fischer described in his speech — which can be read in full here — lay out new conditions for pre-trial detention. Overall, the policies seem to emphasize that cash-bail should not be the court's default tool for dealing with defendants.

They include these provisions:
  • 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 [which is] necessary to ensure safety or the defendant’s appearance.
  • 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.
  • 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.
  • 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.
The policies are similar to what protesters and civil rights advocates have long contended are critical fixes for a broken system. Still, in his remarks, Fischer acknowledged that making that new policies work will take "tough conversations."

"We all share a responsibility to protect the public," Fischer said in the speech. "but we also have a responsibility to ensure those accused of crime are fairly treated according to the law, and not their pocket books."

In the meantime, though, civil rights groups continue to challenge individual jurisdictions for their bail practices and jail conditions. Just last week, a new class action lawsuit hit St. Louis city judges and prison officials; the suit asks a federal judge to declare it unconstitutional for the city to continue holding people in jail "simply because they are too poor to pay for their freedom."

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at [email protected]

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