Missouri Supreme Court Vacates Unconstitutional Rule Change at the Eleventh Hour—Further Begging the Question as to What is Going on Over at the Supreme Court with These New Bail Rules?
The Missouri Supreme Court’s new catch-and-release bail rules went into effect on Monday, but not after some mind-boggling behavior by the Missouri Supreme Court. The Court previously issued a fix to the rules, but then repealed the fix to the rules a mere three hours prior to the rules taking effect.
Let’s walk through what happened and what needs to happen next…
The Missouri Supreme Court has but one rule they have to follow when implementing a new court rule: the constitution requires the rule to be published for six months before it can take effect. This is really the only rule. Recall, the Missouri Supreme Court had a panel that studied bail reform that lead to the new bail rules. Of course, we don’t know who was on it, what data they looked at, and we’ve searched high and low for a report detailing the problems the new rules were supposed to solve. In other states, there is a notice and comment period before a new court rule is proposed, and in many cases the rules committees are appointed by the various branches of government and required to have some version of open meetings. Not in Missouri.
The Missouri Supreme Court followed the constitutional minimum in enacting the original new bail rules that took effect Monday. There were, however, significant problems with such rules. In fact, large enough problems that the Supreme Court modified the rules one week prior to the rules going into effect, issuing a new order on June 25, 2019. If the rules were not significantly flawed from the perspective of the Supreme Court, then why did they make significant changes one week before the rules went into effect, again throwing off local officials and legislators with little explanation of what was going on, other than get it done because we said so.
We indeed pointed out publicly on Friday June 28 that the amendments to the rules were not published for the six-month required period. We then sent a letter to the Court requesting clarification of what was going to happen. We assumed, wrongly, that the Supreme Court would suspend the entirety of the rules package for six months so that the flaws in the rules could be fixed. Instead, the Supreme Court, in a head-scratching move, simply repealed the amendments to the rules – the same amendments the Court must have felt were necessary to fix the rules since the amendments were adopted one week prior to the enactment of the rules.
On Sunday evening, a mere three hours before the rules were to take effect, as prosecutors and law enforcement officials and judges and lawyers began preparing for the new bail system, they were thrown a major curveball. The Supreme Court sent an email to judges informing them that the amendments to the rules would not go into effect at midnight, but instead the rules without the amendments would become law in 3 hours. Those at the local level likely spent the better part of the week trying to understand how the amendments proposed on Monday June 25, 2019 meshed with the rules, only then to be told forget about the amendment and go back to the original version a mere 8 days later at the absolute eleventh hour.
That these new bail rules were so flawed that they needed to be amended before they go into effect, unconstitutionally, yet now we don’t need the amendments for another six months, is called waffling. Or a few other things. Vacillating. Wavering. Wishy-washy. Irresolute. Indecisive. Yo-yo-ing. Uncertain. Call it what you will, but something is amiss and it’s time for legislators and officials to finally weigh in on this mishmash of criminal justice that drives the pretrial release of criminal defendants.
Still, we get it—it was an unconstitutional move by the Missouri Supreme Court—yet why not just delay the entire rules change along with the fixes for six months to give proper time for people to understand what is going on and make sure the correct fixes are in place?
Back to the fundamental question: what is going on over at the Supreme Court and is this how Missouri wants to make changes to the bail system? From a process that lacks transparency to a moving target of rules changing moments before defendants are brought before the court, the Supreme Court is now saying work under the flawed rules until January 1, 2020 when we can change the rules yet again.
Perhaps the Laclede County Sheriff’s Office said it best in a press release on June 27, 2019…
“The Missouri Supreme Court has basically given a free pass to those who are repeatedly breaking into our houses, our businesses, stealing vehicles or dealing drugs. When we make an arrest, regardless of how many burglaries you have committed in the past, or vehicles you have stolen, if you have no violent crime in your criminal history, and you make it to your court dates, you will get a summons to appear in court.”
“As silly as it sounds we could arrest a suspect for burglary on Monday, who has no violent crime history, issue him a summons, arrest him on Wednesday for a different burglary and be required to issue him a summons on that case, the Supreme Court has really put people’s property in danger. In the eyes of the Supreme Court I guess it is basically “rinse and repeat for law enforcement,” said the Sheriff.
It is time for public officials to demand that the Supreme Court rescind all of the bail rules and that the Governor or legislature form a blue-ribbon task force to look at Missouri’s bail system in a public, transparent, fair process that is fully open to the public and the involvement of critical voices in the criminal justice system. The system of risk-based preventative detention, which appears to be the endgame of the judiciary, is no longer the preferred approach to bail reform across the country for a myriad of reasons. More sensible approaches to bail reform exist, including our Fourth Generation of Bail Reform which can be used as a framework for a more consensus-based approach.
It is time to let local and state officials weigh in on changes to the bail system in Missouri. Unfortunately, the curtains are closed over at the Supreme Court. As Lord Acton once said: “Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”