Bail and Bond: Misconceptions

The Jackson County Jail and the issuance of bonds are deeply intertwined but highly misunderstood elements of our criminal justice system.

I am frequently posed with questions regarding bond, like: Who issues bond? What amount of cash should be set? How do we measure safety in dollars? Why aren’t bond amounts tied to the community’s outrage regarding the harm caused by the offender?

For my role, it’s important to start with victims in this discussion. They have experienced a personal harm so great that emotions are high. They may demand that bail be a form of punishment. It’s understandable. In my attempt to address the facts, I don’t wish to lose victims and their emotions in the process. They play a very important role in our system. But when assessing bond, judges must all be guided by the facts and the rules and a very key reality, the number of jail beds available, not emotion.

A key tenet of our American system of justice is the accused are presumed innocent until proven guilty by a judge or jury. Bond, in this context, is issued before guilt is determined. While members of the public may opine on whether a defendant is innocent or guilty; judges may not. And our bond system, which is based on cash, has been subject to great debate, sometimes emotional. Some believe the cash bond system should be abolished. This blog post is not about those debates. It is about the system that we inherited and our challenges to make it work. 

So back to those questions.

Many believe it’s the prosecutor who decides the bond amount. It is, rather, the court’s responsibility to first decide if a bond is warranted. Then the Judge must determine the amount of bond and those decision are guided by Missouri Supreme Court rules. The state’s highest authority over the criminal justice system has set the rules that govern bond and all are bound to follow them. The role of the prosecutor is to recommend a bond for the court to consider, but the prosecutor is also subject to the rules. And time is a precious commodity during this process. In Missouri, a suspect arrested for a crime must be charged within 24 hours or be released. This requires police and prosecutors work cooperatively, under extreme time pressures, bound by the rules, just to get before the judge. 

I have included a link to the Court issued bond rule, but the important part begins with this clear statement: A defendant charged with a bailable offense shall be entitled to be released from custody pending trial or other stage of the criminal proceedings. The Court makes clear that a judge should set the “least restrictive condition or combination of conditions of release.” In general, the rules presume a defendant should be free before trial unless a judge is convinced that the defendant poses a high enough threat to public safety or will not appear for court. In my view, judges carry nearly an impossible burden.

Missouri Supreme Court Rule 33.01 is found at: https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/3746fcd8eae678fe86256ca600521224?OpenDocument

I realize that citing the rule does not lessen the difficulty or resulting outrage regarding bond. And to further compound the misconceptions about bonds, I am acutely aware, as I said above, that for some victims, emotions are too raw and the harm is too great. No easy answers exist. My job, however, requires me to be fact-driven, guided by investigations and the law in my recommendation. Judges, too, are bound by the same considerations. I will not be one of those prosecutors who will malign judges for the issuance of a bond that I disagree with, even when the media or victims are upset. That is simply not fair. Maligning a judge for a particular bond fails to account for the rules that govern this process and the complexity and swiftness required in carrying out this responsibility. It is a difficult business to accurately determine one’s level of risk coupled with mandatory considerations for every defendant.

In Jackson County, the Judges have another important consideration – is there an available bed for the addition of any new defendant. This is a critical part of the Judges’ analysis because our jail has been viewed as a system under stress, either dangerously over capacity or with conditions too poor for anyone to defend. The county’s own jail consultants found at Jackson County’s jail capacity needs to grow to 1,204 by 2025. And by 2050, it needs to be at 1,366. Most recently jail officials report the operational capacity is 640. We trust jail administrators have determined the safe capacity of this facility. The county’s jail consultant also looked at other cities and found Jackson County’s current facility can house half the number of prisoners as comparable cities and Jackson County has just one-third the jail capacity of St. Louis. These comparable jail numbers were not cherry-picked. Every other city I have studied has a detention facility that is substantially larger than Jackson County’s. And this is not a new problem. Over my tenure, exceedingly difficult decisions have had to be reached due to the limited capacity of our detention facility. For practitioners in this system, we have accepted our reality, though it is grossly unfair to those practitioners to make the same poor choice AGAIN.

County officials have recently debated how big to make the county’s new jail. To me, it’s simple. When in doubt, defer to an expert. Nearly three years ago, the jail consultant concluded we need a bigger jail. So we need a bigger jail. Some policy makers do not agree with this statement and want to pick a number that is below an expert’s assessment of our needs. It will grow more difficult to continue with an inadequate system. What does that mean? If you’re outraged that a dangerous burglar is not in custody, understand that a judge likely faced a decision to release a robbery defendant who used a gun or an accused child sex offender or a domestic abuser to free up a bed for the burglar. It’s Jackson County’s own Sophie’s Choice.