This article originally appeared in the Missouri Association of Criminal Defense Lawyers (MACDL) Bimonthly Email Update.
Missouri’s bail bond law is contained in a combination of constitutional, statutory, procedural rules and case law. The law has developed over a very long period of time and the application of the various provisions can sometimes be contradictory or confusing.
Missouri’s first constitution, adopted in 1820, provided:
“That all persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption is great.” Mo. Const. art. XIII, §11 (1820).
This language has been retained since 1820 and now appears in article I, §20 of the Missouri Constitution.
Article I §20 was the principal statement on bail until 1992 when the Missouri Constitution was amended by adoption of article I. §32. Article I, §32 provides that “upon a showing that the defendant poses a danger to a crime victim, the community, or any other person, the court may deny bail or may impose special conditions which the defendant and surety must guarantee.” This provision changed the game for defendants in that the safety of the victim and community became a consideration for courts setting bail. Perhaps more realistically, it legitimized the otherwise illegitimate practice of setting high bonds in criminal cases where aggravating circumstances existed but no threat of flight was present.
In the mix with sections I and 32 is article I, §21, the Missouri equivalent to the 8th Amendment to the U.S. Constitution, which provides: “That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
Section 544.455 RSMo. was initially adopted in 1972 and amended as recently 2013. It addresses the circumstances under which a person charged with a crime may be released and is primarily concerned with assuring that the released person will appear at times designated by the court. Read alone, one might erroneously conclude that the only purpose of bail is to assure the appearance of the defendant at trial.
Posting of a 10% bond with the court has its genesis in subsection 5 of 544.455. Under this provision a defendant can post funds equal to 10% of the bond amount with the court as an alternative to traditional commercial bonding. Assuming the conditions of the bond are met, the deposit is returnable at the conclusion of court proceedings.
While subsection (5) offers an alternative to commercial fees, many courts shun 10% refundable bonds because unlike bail bondsmen who have an interest in returning an absconder, the person posting the bond is rarely in a position to pursue someone who has violated his or her conditions of release.
Section 544.445 makes no effort to harmonize itself with article I, §32 and is similar in many respects to Rule 33.01 of the Missouri Rules of Criminal Procedure. Rule 33.01 of the Missouri Rules of Criminal Procedure, which was first adopted in 1979 and last amended in 1994, read alone, would lead one to believe that the only purpose of bond is to assure the appearance of a defendant at court proceedings. In pertinent part it declares:
(a) Any person charged with a bailable offense shall be entitled to be released pending trial. Any person convicted of an offense entitled to be released upon appeal shall be released upon appeal until adoption by the court of an opinion affirming the judgment of conviction. The affirming court may, by special order, permit the defendant to remain on bond after affirmance pending determination of after-affirmance motions or applications.
The balance of the rule provides a list of conditions that may be employed by the bonding court to secure the attendance of the defendant. Restrictions on travel, execution of a bond in a stated amount, third party custodial commitment, and reporting requirements are listed in the Rule. Subsection (5) also allows the bonding court to place 10% or less of a required bond with the registry of the court.
Similar to §544.445 RSMo., Rule 33.01 makes no reference to article I, §32 and its pronouncement “that upon a showing that the defendant poses a danger to a crime victim, the community, or any other person . . .” the court may deny bond altogether. Rule 33.01 was last amended two years after the adoption of Article I, §32 was adopted in 1992 but has gone unnoticed in Rule 33.01. Obviously, it would be a mistake to rely exclusively on Rule 33.01 when making decisions that affect the liberty of a defendant prior to trial.
Perhaps the most important development over the past few years was the Missouri Supreme Court’s ruling in State v. Jackson, 384 S.W.3d 208 (Mo. Banc 2012). State v. Jackson considered whether the setting of a cash-only bond violated the provision in article I, section 20 that “all persons shall be bailable by sufficient sureties, except in capital offenses when the proof is evident or the presumption is great.” In reaching the conclusion that cash-only bonds are permitted under Missouri law, the court undertook an extensive review of Missouri bail bond law tracing its history back to Missouri’s first constitution and before. Anyone looking for an overview of the law affecting pretrial release should take the time to review this case.
Jackson contested the setting of a cash-only bond of $75,000.00 in his criminal case. Importantly, he did not argue that the bond was excessive but only that a cash-only bond violated article I, section 20, which he maintained authorized commercial bonds in all cases except capital offenses. Because a claim of excessive bond was not raised by Jackson the court did not address whether or not Jackson’s $75,000.00 was excessive. However, it did suggest that while bond cannot be used solely to keep a defendant in jail pending trial, it is possible to deny bond altogether “if the State shows that the defendant poses a danger to the victim or public.”
In many respects, the expansion of cash-only bonds and adoption of a standard of danger to the community as a factor to be considered in setting bond represents society’s new found concern about victim rights and downplay of the presumption of innocence. As late as 1977, courts in Missouri were still placing a good deal of emphasis on the presumption of innocence. In State v. Dobson, 556 S.W.2d 938, 944 (Mo.App. 1977) the court observed: “Denial of bail prior to trial to inflict punishment on the accused would not only hamper the preparation of his case, but would render meaningless the presumption of innocence. Bail is to be denied, therefore, only under the most compelling circumstances.” Id.
Some of the popularity of victim centered legislation can be found in the federal Bail Reform Act of 1983. The general expectation under the Bail Reform Act is that a defendant shall be released on his own recognizance or unsecured bond, “unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. §§ 3142(a (2) &3142(c). Under the act a defendant may be detained without bond when the court finds that there are no conditions or combination of conditions that will reasonably assure the appearance of the person as required and the safety of any other person and the community. Id. at § 3142(c).1 Unlike Missouri law, which appears to make no reference to a burden of proof, in order to detain someone under the Bail Reform Act, the burden is on the government in federal criminal cases to prove by clear and convincing evidence that the defendant is a danger to the community. The Bail Reform Act has virtually eliminated the use of commercial bonding and replaced it with the creation of federal pretrial services officers who assess, make recommendations regarding release and supervise those released as they make their way through the federal courts.
Several counties in Missouri have established some form of a pretrial services office that effectively works to reduce the use of bail bonds in favor of supervised release on the defendant’s own recognizance. In some respects this has been a response to jail overcrowding but is also recognition that a significant portion of those awaiting trial in county jails are there only because they are poor. Similarly, discussions among the judiciary and other interested parties are taking place regarding the reform of bail in Missouri courts and while no specific proposals have been adopted, it is likely that there will continue to be movement away from commercial bail bond practices in the future.
In dealing with the changing landscape of pretrial release, there are a few things to keep in mind. In Jackson the court declared that trial judges are required to consider the defendant’s financial resources in setting bail. Jackson at 216-217. It is at least arguable that consideration of financial resources in setting of bond conditions necessitates a hearing and that the burden of proof should be on the State to prove by clear and convincing evidence that the proposed bond conditions are not excessive. With the advent of electronic monitoring, it is not uncommon that prosecutors in many counties request bond conditions that require the defendant to pay weekly or monthly costs of GPS monitoring or for other services such as pretrial probation services, which then are routinely imposed by the court at a substantial cost to the defendant.
All too often the imposition of bond conditions is a one-sided affair with little regard to the presumption of innocence. Judge Stith made clear in State v. Jackson that:
“If bail is set higher than necessary to secure the defendant’s appearance or to protect the public, it constitutes an impermissible punishment, contrary to the venerable presumption that a defendant is innocent until proven guilty.” Id. at 216.
Courts have an obligation to consider the presumption of innocence but it is regularly up to advocates for the accused to remind us of our duties under the constitution. It is a responsibility that we, as criminal defense lawyers, should embrace. Asking for hearings on bond and requesting that the prosecution bear the burden of clear and convincing evidence in determining conditions of bond will go a long way toward ensuring Due Process in bond determinations.
1 Additionally, there is a rebuttable presumption against release in certain types of violent crimes and crimes in which the maximum term of imprisonment for a drug offense exceeds 10 years, some firearm offenses, offenses involving minor victims and certain other offenses where the maximum term of imprisonment is 20 years or more.