Criminal justice advocates in Missouri hope that new statewide rules will keep poor defendants out of jail because they can’t afford bail.
But one Kansas City public defender is concerned that poor defendants will have to stay behind bars before trial due to the cost of electronic monitoring devices.
The rules, which took effect July 1 and announced earlier this year by the chief justice of the Missouri Supreme Court, direct judges to consider other pre-trial options instead of cash bail. Judges can still require cash bail if deemed necessary when looking at factors like a defendant’s flight risk and safety to the community.
“When I began practicing law three decades ago, we were all told the proper answer was to be tough on crime,” Chief Justice Zel Fischer said during January’s State of the Judiciary address. “But, as time has proven, being tough on crime is not necessarily being smart on crime.”
Jackson County’s former chief public defender, Sean O’Brien, called the rules a “small part of the effort to try to unravel mass incarceration.” The legislature is also trying to tackle the issue with a bill that's on Gov. Mike Parson’s desk that would get rid of mandatory minimums for some nonviolent crimes and prevent police from arresting a person who can’t afford jail fees.
O’Brien, now a law professor at the University of Missouri-Kansas City, said some of his former clients couldn’t afford bail, missed work and eventually lost their jobs.
“One hundred percent of the people who will benefit from this rule are presumed to be innocent. That's important to realize,” O’Brien said.
It’s something Fischer cited, too, saying that people “cannot support their families and are more likely to reoffend.”
Instead of cash bail, judges can require a defendant to regularly check in with a court officer, undergo treatment for alcohol dependency or be placed on home supervision. O’Brien acknowledged that having fewer people in jail waiting for their trial could mean some people won’t show up to court.
“There may even be cases where somebody commits a new crime while they're on bail. Those things will happen,” O’Brien said. “But the question is whether Kansas City as a community is better off not throwing as many people in prison.”
One thing that could complicate the new rules is deciding who pays for electronic monitoring devices, which is factoring into a Clay County case.
Michael Jones was arrested in April for aggravated drinking and driving. He can’t afford the $400 fee for the alcohol-level monitoring device, so he’s been in jail for more than a month waiting for a trial that hasn’t yet been scheduled.
His public defender, Matthew Mueller, said the state’s new rule was meant to keep situations like this from happening. But the judge ordered Jones to have the device because he has multiple drinking and driving convictions, according to Jim Roberts, a spokesman for the Clay County prosecutor’s office.
Roberts said a private company isn’t going to provide the monitoring for free. And while the state’s rule says a judge can waive the costs of the device, it doesn’t say who would foot the bill.
“I don't think the rules were meant to be written and be so constrictive that public safety is put at risk,” Roberts said.
Mueller asked a state appeals court Monday to step in and provide guidance on the rule.
Aviva Okeson-Haberman is the Missouri government and politics reporter at KCUR 89.3. Follow her on Twitter @avivaokeson.