Bail reforms focus on public safety concerns

The wave of bail reform flowing through areas of the country will surge in Missouri on July 1, and already has taken place in Ripley County.

Poplar Bluff police chief Danny Whiteley recently invited Butler County Sheriff Mark Dobbs, Ripley County Sheriff Mike Barton and several bail bonds agents to discuss the flood of issues law enforcement, bail bonds agents and the public soon will be facing.

While legislation dealing with the issue may not make it to the governor's desk this session, changes enacted by the state Supreme Court are scheduled to go into place July 1.

The Missouri Supreme Court chief justice announced new rules earlier this year requiring judges to first consider non-monetary conditions for pretrial release, a shift aimed at reducing court costs he said can sometimes derail the lives of low-income defendants.

Judges still will be able to set bail if needed, but only at an amount necessary to ensure either public safety or the defendant will appear in court, Chief Justice Zel Fischer said in his State of the Judiciary address to lawmakers at the state capitol.

He said it's the responsibility of judges "to ensure that those accused of crime are fairly treated according to the law, and not their pocket books."

"Too many who are arrested cannot afford bail even for low-level sentences and remain in jail awaiting a hearing," Fischer said in an Associated Press story. "Though presumed innocent, they lose their jobs, cannot support their families and are more likely to reoffend."

Fischer said courts may not order a defendant to pay costs associated with conditions of their release, such as the costs of an ankle monitoring bracelet, without first considering reducing or waiving those costs.

Judges only will be allowed to order defendants to be jailed before trial without bail or another opportunity for release if they determine it's necessary for public safety.

Fischer called the changes "extensive and meaningful."

While Dobbs, Barton and Whiteley are waiting to see what impact the new rules will have on their jurisdictions, Ripley County defendants already are getting monitors.

The 36th Circuit Associate Circuit Judge Thomas David Swindle of Ripley County, who has started using the new rules, is the first judge in the circuit to implement the changes. Swindle explained he's not using the changes in every case.

One reason Swindle made the changes for some Ripley County cases is the Doniphan City Jail was destroyed by flooding in 2017 and the county has to house prisoners in jails in other counties. Swindle explained jail expenses are about $30 a day and the ankle monitors cost about $6 a day.

Swindle explained it is easier for Ripley County to pay $6 rather than $30 a day for non-violent offenders.

Suspects who are facing charges on alleged physical assaults are not being allowed to wear the monitors, Swindles said. They have to post bonds or are placed in jail.

Swindle doesn't like having people who commit offenses released without bail.

He described the proposed changes to a "grass fire with a 30 mile an hour wind" spreading out of control.

Swindle's theory is there is no substitute for respecting the law and he hopes the changes don't create a vigilante form of justice, saying, "I am optimistic it will not."

Describing himself as "very passionate" about the law, Swindle said, "I care. I took a major cut in pay to be a difference maker and help people and help kids."

He feels it is a morality issue and "maybe I can save a few."

Calling himself a constitutional purist, Swindle said, the bail bond laws go back hundreds of years and are a part of common law.

While law enforcement and judges are questioning the changes, bail bondsman Craig Meador of Poplar Bluff, MIssouri, said the main problems he foresees escalating are "the public will be at a larger risk of dangerous criminals being released with no accountability. Sheriffs, police and highway patrol will be doing the rearrests of thousands of fail-to-appear warrants instead of bail bonds agents."

Meador believes prosecutors will be holding thousands of mini-trials to detain dangerous defendants and the judges' dockets will become riddled with fail-to-appear warrants. County commissioners will have to fund hundreds of thousands of dollars to implement the cost of pre-trial services.

Chuck Telle of Hillsboro, Missouri, is a bail bonds agent and past president of the Missouri Bail Association.

Telle said, "After reviewing the proposed Missouri Supreme Court Order regarding Rules 21, 22 and 33, myself and our organization, the Missouri Bail Association, have lodged opposition to and encourage the court to modify the rules in their existing form. The basis for our objections stem from two key points."

The first point, he said, is "it appears the courts are trying to make wholesale changes to the criminal pre-trial system to correct the 'only poor people are sitting in jail' syndrome. However, when these claims were analyzed in other states, they found most defendants are being held for other reasons (like probation and immigration holds, etc.). Further, most courts already have a pre-trial services department that are supposed to evaluate those defendants of lesser means and suggest a non-monetary release when appropriate. So if defendants are being held for an unreasonable amount of time, we believe a study should be undertaken to examine the cause versus upending an entire working system."

On the second point, Telle said, "We feel the new rules change will further complicate the release for low-level offenders (and offenders of lesser means) by allowing them to be preventatively detained or locked up the defendant pre-trial without the ability for release. This is antithetical to the fix for the 'only poor people are sitting in jail.' The bail industries belief is in the right to bail and/or release -- except for certain changes. Changing court rules that allow for detention, especially in low-level offenses and misdemeanors, will only increase the probability that judges will choose detention, and in fact, where allowed across the county these increases bear out."

Telle explains, "Missouri's bail industry has played an integral part of our state's criminal justice system for many years. We operate at no cost to the taxpayer, ensure a person charged with a crime can be released without costly and stifling conditions but ensures a person appears for every court date the judge requires. We're an integral part of your community and we ensure a victim has their day in court. These new reforms will usher in an attitude of complacency, increased failures-to-appear, and recidivism, taxed resources in law enforcement and prosecutor's offices and county budgets exploding with the cost of new and expanded Pre-trial Services offices. Can Missouri really afford this? Common sense economics says otherwise."

Chris Cain of Jefferson City, Missouri, who is a lobbyist assistant for bail bondsmen, said, "The reality of the situation is that bail is often the most convenient, least restrictive way for the accused to secure release from jail pending trial. These rules will make it harder for defendants to access bail, encouraging judges to instead consider more invasive measures like electronic monitoring, parole-like check-ins with law enforcement officials, or even curfews.

"The pre-trial detention language is the biggest problem with this language," Cain said. "We've seen it time and again in other states -- activists come in, say there's a problem with people being jailed before trial because they can't afford bail, and say that they are going to fix it by using 'risk-based assessment tools' to recommend pre-trial detention. In every case, the result has been more people jailed prior to conviction based on secretive risk assessment algorithms. That's more people spending months in jail, losing their jobs and sometimes their families, all before they are even convicted of a crime. Getting rid of bail is not the answer.

"The court undoubtedly had good intentions, based on what Justice Fisher said in the State of the Judiciary. However, they are taking the wrong approach. They are attempting to make bail a last resort, replacing it with vastly more invasive and burdensome conditions of release."