New cash bail rules prevent Missouri judges from issuing high cash bail without considering a person’s ability to pay. But judges in St. Louis are often denying defendants bond, keeping them in jail before trials, St. Louis attorneys and activists say.
On Dec. 1, about 570 people were in St. Louis jails because judges denied them bond pretrial, according to data provided by the 22nd Judicial Circuit Court from a jail population report.
Judges denied bond to about 60% of Black defendants in the city in October, compared to 50% of white defendants, according to the Freedom Community Center’s Court Watch data.
On average, 85% of people in St. Louis jails are Black.
“We have certainly seen fewer people held on cash bail, but at the same time, many more held on no bond allowed,” said Blake Strode, executive director of civil rights law firm ArchCity Defenders.
“It’s a classic case of the system recalibrating and in some ways achieving many of the same results,” Strode said.
The Missouri Supreme Court enacted new court rules in July 2019 that restructured state courts’ approach to pretrial detentions. The rules require judges to consider non-monetary conditions first when weighing whether legally innocent people must remain in jail.
The St. Louis jail population began to fall before the new court rules took effect and continued to decline after their enactment, city data shows. The daily average jail population over the course of a year fell from 1,097 in 2019 to 666 in 2021.
Sarah Phillips, pretrial coordinator for the 22nd Judicial Circuit Court, said it’s unclear how much the new rules have contributed to the population decline.
St. Louis Circuit Attorney Kimberly M. Gardner, elected as a “progressive prosecutor,” took office in 2017. She promised to reshape the criminal justice system and announced in 2018 that her office would no longer prosecute marijuana possession under 100 grams as her predecessor, Jennifer Joyce, had.
“We’ve had a pandemic which resulted in a lot of releases from the jail,” Phillips said. “We also have a prosecutor who was elected in 2017 and has different priorities than the prosecutor who came before.”
Judges are denying bond more often, but those detained are charged with serious crimes, said Phillips.
“We now see [no bond allowed] applied pretty much in cases where, before that rule change, we would have likely seen a very high cash bond,” Phillips said.
Out of the 570 people jailed on no bond pretrial in St. Louis on Dec. 1, about 400 were held on Class A and Class B felonies, according to data from the jail population report.
“For example, that’s murder-first. That’s second-degree murder, those are assault, those are robbery,” said Jacob Long, spokesman for the court. “They’re being held on very serious, violent felonies.”
Fewer than 10 of those detained are being held on misdemeanor charges and none on city ordinance violations.
Under the rules, judges must seek the least restrictive terms of release by evaluating an individual’s likelihood of returning to court for trial and considering the threat they pose to the community.
The Freedom Community Center, a Black-led criminal justice organization, tracks cases in the St. Louis’ criminal justice system. The Freedom Community Center’s Court Watch data show that prosecutors asked judges to deny defendants bond in at least 80% of cases since April 2021.
The court should operate under the presumption that the person be released on their own recognizance unless prosecutors prove otherwise, St. Louis District Defender Matthew Mahaffey said.
“I don't think that this is the spirit in which we do this, honestly,” Mahaffey said. “I think that there is a presumption that if you appear detained on a specific type of charge, the presumption is that you should be detained.”
He said he’s seen the majority of the cases previously tied to cash bail reverted to no bond.
When Missouri Supreme Court then-Chief Justice Zel Fischer announced the new rules in January 2019, he noted that those who cannot afford to pay cash bail risk losing their jobs while in custody, may be unable to support their families and are more likely to reoffend.
But Strode, of ArchCity Defenders, said denying legally innocent people bail means they could face the same challenges the cash bail restrictions were supposed to prevent.
“It really makes no difference whether their bond is set at $1 million or $100,000 or $30,000 that they don’t have or no bond allowed,” Strode said.
“It’s still holding people pretrial, people that are legally innocent, people who haven’t had their day in court.”
Being denied bail entirely could put some defendants in an even worse position than cash bail because they have no chance at getting out, said Mike Milton, executive director of the Freedom Community Center.
People in the cycle of pretrial detention in St. Louis have faced separation from their children, and homelessness upon release, Milton said.
“Literally destroying and the destruction of people's lives,” he said, “particularly Black people and poor people in St. Louis.”
Phillips said the new rules have expedited the bail hearing process for many defendants. The rules created Division 16B, where bail hearings are held within 48 hours of an individual being booked into the jail. Judges consider a variety of factors to determine whether a person should be released, including the severity of the alleged crime.
Phillips said those released on their own recognizance are often able to leave sooner now than they would in a system that relied more on cash bail — sometimes on the same day as their hearing on the promise that they’ll return to court for future proceedings.
If a person is denied bail during the initial hearing, they appear at a separate hearing seven days later where a separate judge can again evaluate conditions for their release.
Denying a defendant bond is “a more transparent way of holding people” who are a flight risk or pose a threat to society than high cash bail, Phillips said.
The number of defendants released on a promise to appear at their next court date increased from 4% in 2018 to almost 40% in 2021, according to ArchCity Defenders data.
Phillips could not provide data on the number of people who fail to appear in court. But according to data from the Bail Project, out of 4,000 cases between 2017 and 2020, about 86% of people keep their promise to return to court. About half of the time, cases were dismissed or people were found not guilty.
While people released on their own recognizance may get out of jail sooner under the new rules, the length of detention for people denied bond is increasing.
In 2018, people were detained for an average of 187 days. In 2021, the average pretrial stay in jail is 386 days, city data shows. Delays caused by COVID-19 are to blame, at least in part, for the long stays, Phillips said.
Lengthy pretrial detentions, regardless of the causes of it, fuel the cycle of violence by putting people in desperate situations, Milton said.
“What we’re seeing is that the court is doing what the court does,” he said. “It’s designed to prosecute and lock people up. And it’s really time for different alternatives to figure out how to deal with violence and harm in our communities other than pretrial detention."
