As Missouri takes steps to reform its bail system, court advocates are concerned about a growing alternative to jailing people before trial: ordering them to wear ankle monitors. Ankle bracelets are promoted as a humane alternative to jail.

But private companies charge defendants hundreds of dollars per month to wear the surveillance devices. If people can’t pay, then they might end up back behind bars.

Last month, the Missouri Supreme Court issued new bond rules requiring courts to consider the ability of defendant’s to pay for electronic monitoring and consider how to minimize or waive the costs for defendants unable to pay.

Use and Cost on the Rise

Nationally, the use of ankle monitors is on the rise as cities and counties look for ways to reduce the number of people in their jails. Over the last 10 years, the number of accused and convicted criminal offenders monitored with ankle bracelets and other electronic tracking devices has risen 140 percent.

In Southwest Missouri, the monitoring devices cost defendants around $300 to $400 per month. Their payments go to various private bond companies, which operate with little oversight.

Reform advocates argue that these fees replicate the issues of cash bail: those who can afford them get to stay out of jail — and those who miss a payment can be sent back to jail.

Michael Milton, leader of the St. Louis office for The Bail Project, points out that one of the biggest problems is that these people have not been proven guilty of anything.

New Missouri Supreme Court Rules

On July 1, 2019, the Missouri Supreme Court issued new bond rules in an attempt to address this issue. Under the new rules, courts are required to consider how to best minimize the costs of electronic monitoring. And gave courts the ability to waive costs for defendants who cannot afford to pay all or a portion of those costs. Click here to read the new rule.

As expected, there have already been several challenges to this new rule regarding how judges can waive these costs and who is required to pay: the individual, the electronic monitoring company, or the State.

We will be keeping a close eye on the Missouri Supreme Court to rule on these challenges and will be monitoring courts in Southwest Missouri to make certain they are complying with these new changes. If you or someone you love has been required to wear a GPS ankle monitor, consider hiring an attorney to challenge that requirement.

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Today, the Justice Department announced that it will carry out the death penalty for the first time in nearly two decades.

Attorney General William Barr directed the Bureau of Prisons to schedule the execution of five inmates after adopting an updated execution protocol.

After 16 years without an execution, Barr has directed the head of the Bureau of Prisons to execute “five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society — children and the elderly” in December and January, according to a statement from the Department of Justice.

In his statement, Barr said the government was moving to seek justice against the “worst criminals” and bring relief to victims and family members. At the same time, however, the government’s move is likely to reignite legal challenges to the specific protocol and reinvigorate a debate concerning the constitutionality of lethal injection.

Background

Legal Challenges Ahead

Barr’s announcement directs the federal government to use a new protocol — similar to what several states use — that has been under review for a number of years.

The executions are slated for the end of the year. But will likely face legal challenges and delays. Legal experts question whether any execution will take place as soon as December.

“Saying that you are going to adopt a protocol is not the same thing as having a protocol properly adopted through the required administrative procedures,” said Robert Dunham, the executive director of the Death Penalty Information Center, a group that has been critical of how the penalty is administered. “You can’t just say it and have it happen. There is a legal process for a protocol to go into effect and there is a legal process for challenging the protocol.”

Opposition will continue once the protocol is formally proposed.

Already in the District of Columbia there has been an ongoing lawsuit involving the federal lethal injection process. There will be a range of questions about how the federal government is obtaining the drug it intends to use.

We will closely monitor whether federal prosecutors in Southwest Missouri decide to seek the death penalty.

Last week, Missouri Governor Mike Parson signed a bill into law that will allow certain people to automatically opt-out of jury duty at their choice. People who can now-opt out of the jury selection process are: healthcare providers, people that would endure extreme physical or financial hardship, nursing mothers, and those over 75 years old.  Springfield CBS affiliate KOLR10 did a story on the new law featuring Woody.

Old Law: Opt-Out With Oversight

Anyone summoned for jury duty goes through a selection process. Potential jurors are questioned extensively by attorneys for each party and by the judge and they can at that time give reasons why they wouldn’t be able to serve on the jury.

Attorneys for the State and for the defendant each have 6 “peremptory” strikes, which means they can strike a potential juror for no reason at all.  There are an unlimited number of “for cause” strikes, which are usually based on a hardship, such as age, work, financial hardship, etc. Criminal Defense Attorney Adam Woody says a new law allows some people to opt-out completely prior to having to appear for jury duty and go through the questioning process.

New Law: Opt-Out Without Oversight

“What this law does is essentially skips that step, and instead allows these people to be excused from jury service before even appearing, before even having to show up for service to go through the jury selection process,” Woody explains.

At age 72, Ruby McDaris has sat on a jury once, but her several times in the jury selection process opened her eyes to a lot of things.

“There was some things, ‘Oh I wouldn’t want to do that,’ but then I think, ‘That’s how the law works.’ So I saw a lot of insight for myself. I enjoyed it,” McDaris says.

McDaris can opt-out after she turns 75. Since the constitution provides anyone on trial a jury of his or her peers, Woody thinks that this could be an issue if many people are opting out.

“There are cases in which I would want a healthcare professional on the jury. There are cases which I may want an elderly person on the jury,” says Woody.

The change takes effect August 28.

This change could lead to interesting challenges by defendants who feel that their constitutional right to a jury trial by their peers has been impacted by allowing a large cross-section of the community to opt-out without any oversight. We look forward to monitoring how many potential jurors opt-out in Southwest Missouri once these changes are in effect.  At some point, the Constitutionality of this new law is sure to be challenged.

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Yesterday, Missouri Governor Mike Parson signed a new law that could make hundreds of prisoners immediately eligible for parole, probation, or early release. The new law exempts some non-violent offenses from a state law that requires people to serve at least 40, 50, or 80 percent of their prison terms, depending on the number of previous convictions. These changes begin on August 28, when the new law goes into effect.

Governor Parson, a former sheriff, said that the bill would help bring “reform to Missouri’s criminal justice system.” Click here to read the full text of the new law.

National Trend

The new Missouri law reflects a national trend toward more lenient prison terms for some low-level criminals as governments shift toward alternative strategies focused on rehabilitation. It received strong support from both Republican and Democrats as it passed Missouri’s Republican-led Legislature earlier this year.

Decreasing Missouri’s Prison Population

Missouri’s prison population peaked at 33,243 in September 2007, but fell to 28,038 as of Monday. The Missouri Department of Corrections noted that the decrease is due to other recent changes to Missouri’s criminal sentencing laws.

The Department estimated that the new law could decrease Missouri’s prison population by 192 people this year and by 925 people by the 2023 fiscal year. That could save the State {and taxpayers} $1 million in avoided prison costs this year alone. And nearly $5.9 million by 2023.

Mandatory Minimums Still in Place for Violent Offenses

The measure would keep in place mandatory minimum sentences for murder, assault, rape, child sex crimes, and the most serious levels of arson, burglary, and robbery, as well as various other crimes. It also would subject people convicted of top-tier drug trafficking offenses to mandatory minimum sentences.

This is a positive change for our criminal justice system and our state’s economics. We will continue to monitor how this law is put into effect. It will be interesting to see how many non-violent offenders get released from custody and how much money this saves tax payers in Southwest Missouri.

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Missouri’s new rules on setting bond for criminal defendant’s went into effect on July 1–and some last minute tweaks by the Missouri Supreme Court might avoid some logistical problems that could have arisen.

Judge’s Must First Consider Non-Monetary and Least Restrictive Conditions

The most prominent aspect of the new bond regime is that, in general, once a suspect is arrested and confined, judges have an explicit 48-hour deadline to set bond at an initial appearance, whether in-person or on video. In that bond setting, a judge must first consider imposing conditions of release that are non-monetary and as unrestrictive as possible in order to secure the defendant’s appearance at trial or protect the community or victim.

Right to Bond-Review Hearing Within 7 Days

If, however, the judges do order further detention, they must be able to show clear and convincing evidence it is necessary — and in that case, the defendant will have a right to a bond-review hearing within seven days. Both this seven-day window and the 48-hour window exclude weekends and holidays.

Jackson County Presiding Judge David M. Byrn suggested that the new rules were prompted by a nationwide movement against the practice of holding defendants before trial only because they cannot afford to post a bond.

Under the new bond rules, a defendants ability to pay, his or her family situation, and the danger posed to the public by release are now crucial points for judges to consider.

These new rules also apply to probation violations. Under the old rules, these arrestees needed to have a hearing within 96-hours of re-arrest; that window has expanded to seven days, excluding holidays and weekends.

When Does the Clock Start Ticking?

The initial bond appearance must be held within 48-hours after the defendant is “confined under the warrant in the county that issued the warrant.” Because many counties do not have their own jails and send their pretrial defendants to neighboring counties, the clock starts running when they are confined “in a county with which the issuing county has a contractual agreement to hold the defendant.” Additionally, the initial appearances can occur via interactive video technology.

New Rules Apply Retroactive to “Backlog” County Jail Population

On June 11, 2019, U.S. District Judge Audrey G. Fleissig issued a preliminary injunction to several inmates in the city jail for an inability to afford bail in a class-action lawsuit against the St. Louis Circuit Court. Judge Fleissig cited evidence in a random sample of 222 cases in St. Louis Circuit Court, the duty judge set a bond 98 percent of the time, without any information about the defendant’s ability to pay.

In her opinion, Fleissig wrote: “These practices do no comport with applicable Supreme Court and Circuit precedent.” Moving forward, Judge Fleissig mandated that the court not only conduct initial appearance in compliance with the new bond rules–which would be required anyway–but also that the court hold bond-review hearings within seven-days for all defendants currently in jail who had been detained for longer than 48-hours. Click here to read Judge Fleissig’s opinion.

Avoiding Clogging the Courtrooms

Some critics have voiced concerns that these new bond rules will clog the courtrooms. However, some jurisdictions have already prepared for implementing the new rules. In the city of St. Louis, Presiding Judge Rex Burlison said that his court is setting up a standalone courtroom outfitted with a closed-circuit video system between it and the county jail to hold the mandated initial appearances within 48-hours. Judge Burlison said that this change will prevent the bond hearings from clogging up the courtrooms.

We will certainly be monitoring how courts in Southwest Missouri implement the new bond rules and the consideration judges give to non-monetary conditions of release. If you or someone you love gets detained on criminal charges, it is critical that you hire an attorney familiar with these new rules and as soon as possible after arrest to be represented by an attorney at the new mandatory bond hearings.

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Click here to read the Rules on Bond for Misdemeanors.

Click here to read the Rules on Bond for Felonies.

Click here to read the Rules on Initial Bond Appearance for Felonies.

As the Missouri Department of Health and Senior Services continues to craft the rules and regulations regarding medicinal marijuana in Missouri, questions regarding the new Constitutional Amendment continue.  One primary concern prospective medicinal marijuana users have is whether it will impact their Second Amendment Rights.  The answer, of course, is somewhat up in the air.  There is unlikely to be any state regulation banning firearms possession by medical marijuana patients, but the conflict comes from the federal law.  Current federal law outlaws possession of a banned controlled substance while simultaneously possessing a firearm.  Although the federal government has been fairly lax with states that are legalizing marijuana, the substance is still illegal federally.  The Bureau of Alcohol Tobacco and Firearms has taken a hard-line approach when it comes to medicinal marijuana users and firearms possession.  Their position is: you can’t have both.  That is unlikely to change and will be the governing rule in Missouri.  Once a person gets a medical marijuana prescription, their name will go into a federal database.  When that person attempts to purchase a new gun, their name will come up on the exclusion list and they will be unable to purchase a firearm.

It appears in Missouri and other states that have legalized medicinal marijuana, those patients have a choice to make: prescription marijuana or their Second Amendment rights to own, possess and purchase a firearm.

Adam was recently interviewed by the local CBS affiliate KOLR10 on this topic.  You can watch that interview by clicking the link here.

A report from Missouri Attorney General shows black drivers across the state are 91 percent more likely than white motorists to be pulled over by police.  

The Springfield NAACP says numbers from the report have launched leadership to start working with law enforcement to find solutions.

Local law enforcement does not agree. Lawrence County Sheriff Brad Delay doesn’t buy the report, stating “A lot of times, there area reasons for that. Don’t get me wrong, I’m sure there are probably those in there that don’t need to be in this profession, but the vast majority in them, this is being done again to show that we are not racially profiling.” Click here to watch Lawrence County Sheriff Brad Delay’s interview.

The data stands in stark contrast to Lawrence County Sheriff Brad Delay’s position. In Lawrence County, the disparity index for black drivers was 8.26. Anything over 1 indicates that there was an over representation of stops for the proportion of the population.

Meanwhile, the disparity index for white drivers was 0.97. Anything under 1 indicates that there was an under representation of stops for the proportion of the population. Click here and scroll to page 585 to see Lawrence County’s statistics.

Driving While Black: Southwest Missouri Statistics

The data does not lie.

In Greene County, the disparity index for black drivers was 2.82. Anything over 1 indicates that there was an over representation of stops for the proportion of the population. But the disparity index for white drivers was 0.97, indicating that there was an under representation of stops for the proportion of the population. Click here and scroll to page 413 to see Greene County’s statistics.

In Stone County, the disparity index for black drivers was 21.21! While the disparity index for white drivers was 0.99. Click here and scroll to page 1035 to see Stone County’s statistics.

In Christian County, the disparity index for black drivers was 7.38. But the disparity index for white drivers was 0.98. Click here and scroll to page 203 to see Christian County’s statistics.

In Laclede County, the disparity index for black drivers was 5.88. But the disparity index for white drivers was 0.99. Click here and scroll to page 547 to see Laclede County’s statistics.

In Taney County, the disparity index for black drivers was 3.15. But the disparity index for white drivers was 1.03. Click here and scroll to page 1061 to see Taney County’s statistics.

The 2018 report found the statewide search rate for black and Hispanic drivers were greater than white individuals (black: 8.93; Hispanic: 8.44; white: 6.04). Interestingly, the contraband hit rate was higher among white drivers (black: 33.82; Hispanic: 29.15; white: 35.68). But arrest rates were higher for black and Hispanic people (black: 6.37; Hispanic: 6.26; white: 4.25).

“A Report is Not Enough. Actions Must Be Taken.”

Lawmakers and activists immediately called for swift action in the wake of the report. Sara Baker, ACLU Legislative and Policy Director, addressed the report, stating that “For the eighteenth year in a row, the Missouri Attorney General’s office has released a report that shows black communities, and people of color are disproportionately stopped and searched by law enforcement. A report is not enough. Actions must be taken.”

But yesterday, the Missouri Sheriff’s Association pushed back. Kevin Merritt, Executive Director of the Sheriff’s Association, said that “Race alone is not dispositive of why the stop was made; neither is a disparity index.” Merritt called for expansion include data related to whether the officer knew the race of an individual before the stop was made.

“We appreciate any and all feedback on the Vehicle Stops Report as we are continuously working to improve the data collection and accuracy,” Chris Nuelle, a spokesman for the attorney general, said in a statement to The Missouri Times. “With the 2020 Census approaching, we’re looking into best ways to integrate the most accurate data possible moving forward. Additionally, we hope the proposed changes to this year’s vehicle stops report will provide the most accurate and insightful analysis of stops in Missouri since the report’s inception in 2000.”

The Special Committee on Criminal Justice announced that it plans on holding public hearings in Kansas City and St. Louis on racial profiling and civil asset forfeiture before the General Assembly convenes next year. Source.

It will be interesting to see how Southwest Missouri law enforcement responds to this Report and whether it makes any changes in the way it trains officers in implicit bias and the way it targets vehicle stops.

Click here to read the full Attorney General Report.

Illinois is one step away from enacting a bill legalizing the use of marijuana, making it the first state to do so through the legislature. Ten other states approved recreational use of marijuana through ballot initiatives, including Colorado, California, Massachusetts, Oregon, Nevada, Vermont, Alaska, Maine, Michigan, and Washington. But this is the first time a state legislature in the United States has taken such an action.

The Bill is on the Governor’s Desk for Signature

The bill is on Governor J.B. Pritzker’s desk. It passed the state House of Representatives by 66 to 47 vote. Governor Pritzker indicated that he plans on signing the bill. He estimated that it would make the state $170 million in the first year alone.

High Sales Tax

Users will have to pay heavy sales taxes on the cannabis they purchase in Illinois. There will be a 10% tax on marijuana products containing less than 35% THC, and a 25% or more tax on products with a higher concentration.

Details of the Law

Under the proposed law, Illinois residents 21 and older, beginning on January 1, 2020, will be able to legally possess up to 30 grams of cannabis–a little more than an ounce–and will be able to purchase it from licensed marijuana dispensaries. Non-residents can possess about half the amount of weed that residents can possess.

Under the new law, residents of Illinois convicted of possessing small amounts of marijuana can petition for expungement, so long as the offense was not associated with violent crime. The Illinois Sentencing Policy Advisory Council estimated that approximately 770,000 Illinois residents could qualify to get their records cleared of low-level marijuana crimes.

But critics have voiced concerns. Republican Representative Norine Hammond noted concerns that former felons might be allowed to possess guns and dealers may have their records cleared, as well as the lack of a field sobriety test for pot.

Illinois is well on its way to becoming the 11th state to legalize recreational marijuana. It will be interesting to see if Missouri joins the trend by passing a bill legalizing the recreational use of marijuana.

New security measures at the Jackson County Detention Center in Kansas City aimed at reducing illegal drugs and contraband have caused controversy. This week, female attorney Laurie Snell complained that she was required to remove her underwire bra to pass a metal detector on her way to see a client.

After setting the alarm off, Ms. Snell removed her jewelry and glasses, but it still went off. Ms. Snell was required to remove her bra, place it in the bin, and pass through the metal detector. Once inside the jail, she had nowhere to put it back on, so she put it back on in the elevator on the way to see her client.

“People are Going Nuts”

The public’s criticism of the policy has reached the legislators. Jackson County Legislator Crystal Williams noted that something has to change because “people are going nuts.” Williams is still reviewing the new security policy, but stated that it is obvious that there is an “undue impact on women.” Williams stated that “There are a lot of women who use underwire bras. It seems unseemly that we are discussing this.”

Other Alternatives are Available

Legislator Tony Miller wondered whether different technology would help, such as using whole-body screeners that are now common at airports. At the very least, accommodations should be made for lawyers who visit clients in the jail. All attorneys have passed criminal background checks.

For now, no change is planned. But legislators are not likely to drop the issue. Chairwoman Theresa Galvin stated that “We need to come up with a better solution, because this is not good.”

It will be interesting to see if legislators address the public’s concern over the jail’s new policy requiring female attorneys to remove their bras to visit their clients. So far, no jail in Southwest Missouri has adopted a similar policy.

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