Missouri Supreme Court's Catch and Release Program Starts Monday: Here Is What You Need to Know
Rather than spending time deciding critical cases, the Missouri Supreme Court is now changing substantive law through the court rule-making process in what we consider to be a potentially unconstitutional move. Aside from that, on the policy, the Supreme Court is completely out to lunch—law enforcement officers and prosecutors are going to be engaging in a catch and release program, one that has shown in other states to demoralize law enforcement, embolden criminals, and give short if any shrift to the rights of the those victimized by crime.
It was an interesting social experiment: What happens in a major metropolitan city like Philadelphia when you elect a district attorney whose primary goal is releasing criminals rather than prosecuting them? The results, however, were all too predictable.
So, what do the rules actually do? Here’s a summary of the criminal catch and release program, brought to you by the Missouri Supreme Court:
Law Enforcement Will Be Handing Out Tickets Rather than Obtaining Arrest Warrants in the Vast Majority of Cases, Including Felonies
Prosecutors and law enforcement officers will have to prove in an arrest affidavit that someone is not going to show up for court or that they are going to harm someone else in order to get a warrant for the arrest of a defendant. This will include all cases from homicide to loitering in the town square. If they cannot swear in an affidavit such sufficient facts, judges will not be able to grant a warrant.
The problem here is criminal history and identification—a lot of suspects don’t use their real names. Without doing a finger print based criminal history check (which happens down at the station house after an arrest) they will not have accurate criminal history information to know whether the person is a frequent criminal. In addition, this would also mean that prosecutors and law enforcement officers will be required to conduct a national search of court records to determine whether little Johnny likes going to court to answer on the charges, and if they don’t, guess what—the cops cannot arrest little Johnny and they will issue him an appearance ticket and hope he shows up.
Tinkering with arrest warrants diminishes the substantial rights of the People of the State of Missouri insofar as the law previously required that probable cause that a person committed a crime was the key to the door in terms of getting an arrest warrant. Now we are going to say that even if probable cause is established, that is not enough. And that applies to Charles Manson every bit as much as little Johnny sandwich stealer.
A Pretrial Risk Assessment Algorithm Is Required To Be Used on All Criminal Defendants In All Cases, Contrary to the Recommendations of Over 100 Civil Rights Groups and 80 Digital Interest Groups
Governor Kim Reynolds of Iowa ended their pretrial risk assessment program because the performance results were terrible, particularly in firearms cases. In addition, over 100 civil rights groups including the NAACP and 80 digital groups including Google have recommended against the use of these pretrial risk assessments because they don’t work and because they bake in racial and other biases against protected classes and thus making the system worse. In addition, in a landmark study in Kentucky, they did nothing to reduce jail populations and actually increased the rate of criminal defendants failing to show up in court and committing new crimes while on release.
In other states, like New Mexico, there has been an endless parade of failures frustrating lawmakers and citizens, including a University of New Mexico baseball player who was gunned down by a suspect that the risk assessment algorithm said was low risk, even after two previous incidents of firing a gun in Albuquerque, including one incident where he fired upon police officers. Low risk, said the algorithm, and therefore the prosecutor was unable to overcome the “science” of such a computer system. The list of incidents involving these firearms cases where the pretrial risk assessment assessed someone as low risk is something we have seen coast to coast, from the Twin Peaks shooting in San Francisco to a case in New Jersey where a prior felon in possession of a firearm was assessed as low risk and hours later gunned down Mr. Christian Rodgers.
Of course, the former Governor of New Mexico has publicly warned that the system does not work and makes the community less safe.
The Missouri Supreme Court is going to require all who are arrested to be assessed by a pretrial risk assessment tool that the Missouri Supreme Court is going to pre-approve. You can bet they are extremely likely to adopt the same tool being used in New Mexico and New Jersey, since many wrongly believe it is the gold standard. Then, when the computer says someone is low risk, a prosecutor is going to have to overcome that with evidence. How will prosecutors be able to beat the “science” of an “evidentiary based” risk assessment that has been blessed by the black robes over at the Supreme Court building in Jefferson City? They won’t is the answer, which means some computer program that is not transparent, and potentially racially biased, is going to rule the day in Missouri, and we can tell you, having seen this movie before, it is simply not going to go well.
Of course, there is one other big problem—who’s going to run the assessments and who is going to pay for it. The Supreme Court has not the power of the purse. In other states, it is typically county governments who pay for this. Who’s picking up the tab in Missouri? We just don’t know.
The Right To Bail Is Virtually Extinguished and Get Out of Jail Free Cards Will Be Handed Out Like Candy at Halloween
All persons shall be bailable by sufficient sureties in Missouri. That has been the law in Missouri since pre-statehood. This creates three core rights: the right of a criminal defendant to request bail by sufficient sureties, the associational right of a third party to post bail for a criminal defendant (which the U.S. Supreme Court says is tantamount to taking custody of a defendant), and the right of the People of the State of Missouri to argue as to the sufficiency of the bail and how high it should be in light of the facts and circumstances of each case.
No more. The new rules make bail a condition of release and not a fundamental constitutional right. Judges and prosecutors will have to have a mini-trial on this issue before bail ever comes into play. We think that is a major problem. The presumption will be that everyone gets out of jail via a get out of jail free card. Even then, a judge is allowed to pick from a menu of roughly 15 different kinds of release rather than offering a defendant the right to post bail. For example, if a prosecutor puts up the proof that Charles Manson is not going to show up for court, a judge still does not have to impose bail. A judge could say instead under the rules, Mr. Manson, I’m ordering you to get a job and if you don’t you are going back in. If Manson gets a job, there would be no grounds to then take him back into custody.
The presumption in favor of get out of jail free cards will mean they are handed out like candy. This means the defendant or a third party no longer has skin in the game because there is no bail money to forfeit if they fail to show up for court. Also, bail bond agents won’t be involved either—so when Charles Manson skips court, licensed recovery agents will no longer be looking for him. It will take criminal defendants 10 nanoseconds to realize I just won’t go to court because no one is looking for me. This is catch and release at its core—a revolving door of unaccountability.
The Rules Enacted by the Missouri Supreme Court Are of Dubious Constitutionality and the Process that Lead to Their Enactment Was Completely Secret
For roughly a year, a group of unknowns met behind closed doors to fashion these new rules. Who are these people? Google it. There is no way to find out who was in the room, much less what was said or what information was considered. That is not transparent. In every other state where there has been substantial bail reform, sunshine and transparency lead the day. Not in Jefferson City down at the Supreme Court building where there should be a sign that says: “We are not interested in what the public thinks about what we are doing, please go away.”
Aside from that, there is another glaring problem. The constitution requires that all rules must be published for six months before they take effect. The Supreme Court did that, except at the eleventh hour, on Monday June 24, 2019, a week before the rules were to take effect, the Supreme Court substantially changed the rules, including but not limited to applying the pretrial risk assessment tool to all felonies and eliminating the right of a prosecutor to make a recommendation as to bail as part of asking for an arrest warrant. But, no worries—when you are the maker of the rules and the judge of whether they are constitutional, there’s no reason to worry about the fact that you made a rule seven days before it is to take effect even though the constitution says you cannot do that.
In addition, the constitution says that the rules cannot enlarge or reduce substantive rights. These rules do. The decision as to whether to use a risk assessment in the first place is a decision as to substantive rights because it involves sorting people into categories based on setting tolerances as to how much failing to appear or crime we are going to tolerate. Black robes are going to be deciding that, which may enlarge or reduce the substantive rights of criminal defendants and the People of the State of Missouri. And the list of substantive rights affected by these rules goes on. The constitution says that the rules should pertain to “practice, procedure and pleading.” These rules go way beyond that and implement the no money bail system in Missouri.
If that isn’t enough, the constitution says that the rules cannot change the law pertaining to the rules of evidence. Yet, these rules do exactly that by saying that the rules of evidence do not apply when it comes to making decisions as to whether someone is going to stay in jail or get out. For example, let’s say the risk assessment algorithm says that Charles Manson is low risk. A prosecutor decides he wants to challenge that algorithm as junk science under what is known as the Daubert doctrine which is allowable under the rules of evidence. No more under these rules—the defendant can simply object and say the rules do not allow for the application of the rules of evidence in such proceedings. This means hearsay evidence and other evidence normally not allowable in court will be used to decide whether a defendant is caught and released or caught and kept in jail.
So, not only did the process stink, it may very well be that the Missouri Supreme Court has violated the state constitution in the promulgation and enactment of these rules. We encourage criminal defendants, law enforcement, and prosecutors to challenge the rules and challenge the Missouri Supreme Court. Obviously, the fact that the Missouri Supreme Court is the tribunal of last resort is why they should not have gotten into this business in the first place because they are the architect, builder and inspector of their own handiwork which creates an impermissible appearance of impropriety.
The Legislature Must Act to Repeal These Rules When They Return on January 8, 2020
The State Constitution empowers the legislature to repeal the rules of the Missouri Supreme Court. Of course, the Court knows the dates when the legislature is in session, so we are sure that has something to do with the fact that the rules did not go into effect when the legislature was in session. Nonetheless, local prosecutors, law enforcement, and victims of crime need to keep track of these catch and release policies so when the time comes they can show everyone the results. And we know what is going to happen and it is not going to be good.
Missourians Will Eventually Have the Final Say – Voters In Missouri Will Vote To Retain The Justices Of The Supreme Court And Appellate Judges In The 2020 Election
In 2020, voters will get to decide whether judges appearing on the ballot in 2020 should be retained in office. Missourians should remember that when the time comes. The only way to force the accountability of the judiciary in Missouri is to send them a message that the public is not going to put up with this policy-making from the bench. Appellate judges and Supreme Court Justices must be sent a message, and only the public or the legislature can send that message.
As Montesquieu once said, “there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”