Changes to Supreme Court rules weaken judiciary
(excerpt from the Joplin Globe May 5 2019)
Early this year, the Missouri Supreme Court announced its intent to make sweeping changes to the rules governing bail and pretrial detention throughout the state. The new standards are set to go into effect in July, and I fear the result will be disastrous for our justice system.
Bail serves a very important function — allowing individuals to secure release from jail before trial, reflecting the American ideal that all are presumed innocent until proven guilty — and that is why it has been the most common way to secure release throughout the history of the American justice system. While bail allows an individual to go free temporarily, it creates a financial incentive for the accused to show up to court, as they will forfeit all funds if they do no appear.
Our bail system also puts the burden of ensuring compliance on third-party bail bond agents, rather than on law enforcement alone. This is because bail bond agents have a financial interest in getting their clients to court or — if the individual tries to evade justice — recovering the accused and delivering him or her to the court.
However, under these new rules, bail will effectively be an option of last resort.
Instead, judges are being instructed to consider nonmonetary conditions of release first and foremost, including requirements such as electronic monitoring, imposing a curfew or requiring regular check-ins with law enforcement officials as is required for individuals on parole. Many of these nonmonetary conditions are more burdensome and (in the case of electronic monitoring) potentially more costly than bail.
The Supreme Court’s new rules also emphasize bonding options that will burden law enforcement with the task of ensuring compliance, including measures allowing posting just 10 percent of the bond amount with the court or — in some cases — even just signing a “signature bond” promising to pay the court for failure to appear without any requirement to put down any money at all. With options such as this, there is a reduced incentive to comply with court orders and there is no third party with an interest in recovering fugitives; taxpayer-funded law enforcement resources will in effect be forced to do the work normally done by bail bond agents.
The rules also threaten to weaken our constitutional rights by making it much easier for judges to recommend that individuals be held in jail before trial, without a conviction, by emphasizing the use of an as-yet-unannounced “risk assessment tool” to make detention decisions. In effect, these “tools” allow an algorithm to decide whether an individual poses a risk to the community, substituting for the judgment of law enforcement, prosecutors and judges.
In jurisdictions that have allowed detention by algorithm, the end result is often more individuals incarcerated before their trial. It is particularly troubling that these algorithms have proven to be no more effective at predicting risk than a coin toss.