Nearly four years have passed since a 28-year-old white police officer shot and killed Michael Brown on the streets of Ferguson, the working-class suburb near St. Louis. Civil unrest, a militarized police presence, and unrelenting national publicity have brought energy and organized introspection to long-festering policing and justice issues.
Ferguson may have been ground zero, but evidence of a wide range of police and judicial abuses extended broadly to suburban municipalities surrounding the city of St. Louis. Following the unrest, the Justice Department in 2015 issued a scathing report charging that the municipal court in Ferguson operated “not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue.” After leaving office, former United States Attorney General Eric Holder repeated that theme in a 2016 legal memorandum decrying a “Wealth-Based Pretrial Detention Scheme.” The report focused on imposition of bail in Maryland but applied to court practices around the country.
Now comes St. Louis’ high profile activism to end the imposition of so-called cash bail. Part of a national movement, the St. Louis initiative is a logical extension of local municipal court reform: both attack unjust practices that result in jailings of thousands of people, mostly poor and black.
Judicial leaders have been cautious but open to reform — many not endorsing elimination of cash bail but working to expand pretrial release. The sticking point comes in cases in which the accused is perceived as posing an unacceptable risk to public safety. Missouri law vests judges with broad discretion “to increase the amount of bail, to deny bail entirely or impose any special conditions” when there is a showing “the defendant poses a danger to a crime victim, the community, or any person.”
In fact, for alleged perpetrators of horrific crimes, there is little controversy about setting high bail. When bail is imposed for safety and the amount is set far beyond the accused’s reach, functionally it is not bail at all, but is the denial of bail. For other felony cases not involving violence, judges may grow more comfortable with well-organized, community-supported pretrial release programs. But this may not come easy.
A $2.25 million MacArthur Foundation Safety + Justice Challenge Grant awarded to St. Louis County, the suburban jurisdiction in which Ferguson is situated, has as its goal reducing jail confinements by 15 percent to 19 percent in two years, with a focus on reducing racial and ethnic disparities in the jail population. It’s in its first year, with decision makers from all levels of the system participating. They are turning to, and adapting the best of proven best practices from leading institutions, such as Pretrial Justice Institute and the Arnold Foundation.
The St. Louis County Jail now has about 850 pretrial detainees. The new pretrial release program has enrolled and provided community support to about 325 people. About 25 percent failed to complete the program, nearly all for not appearing for a court date. Fewer than five percent committed a new crime on release, and none was terminated for committing a violent felony.
Ezra Ritchin is national operations director of The Bail Project, a nonprofit that uses and reuses a revolving cash fund to post bail and win the release of pretrial detainees to, has he puts it, “get people back to their families and back to their communities.”
But he and his colleagues face a recurring problem in St. Louis, which they call the “Muni shuffle.” This refers to thousands of still active municipal bench warrants, dating from bad-old-days not long past, which create added risk of needless confinement.
Clients are forced to remain in custody, even after bail has been posted because of “holds” from suburban municipal courts arising from old outstanding warrants. Old warrants might no longer be enforceable. But they can’t be ignored; they must be unwound and that can take time.
Blake Strode is the executive director of Arch City Defenders, the law firm at the forefront of municipal court reform in St. Louis. I asked him what he sees as the most promising system change related to pre-trial detention. His answer doesn’t concern bail. He points instead to caps on municipal fines and fees and reduced or even entirely eliminated traffic enforcement, resulting in an overall “reductions in warrants, arrests, and ticketing,” he says. Reducing pretrial confinement, he argues, is best achieved by reducing arrests, especially dialing back policing for petty infractions.
The St. Louis community, post-Ferguson, has made progress in reducing municipal court abuses. Remedies have come through new accountability rules imposed by the state Supreme Court and state legislation that strictly limits municipalities’ power to assess fines or jail the accused. But those initiatives run up against other system weaknesses and failure, one seemingly intractable: Missouri’s abject and decades long crisis in funding its State Public Defender System.
Real progress will come not with a magic wand but with a pick and shovel — pushing back against over-policing; speeding up trials; purging old court warrants; digging for resources to reasonably staff the Public Defender System. Reforming bail means reforming virtually every other part of the system.
Ferguson activism set reform in motion in St. Louis. It still has a role. The community benefits from being constantly reminded the stakes are high. People taking to the streets, willing to shut-it-down, offer a reminder that you can’t ignore, and shouldn’t.
Eddie Roth is a lawyer from St. Louis. He is a former editorial writer at the Dayton Daily News and St. Louis Post-Dispatch, and former Director of Public Safety, Director of Human Services and President of the Board of Police Commissioners for the City of St. Louis.
