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Joint Letter Regarding Private Pretrial Supervision

January 10, 2019

ArchCity Defenders and St. Louis Legal Organizations Co-Sign Letter Exposing Unconstitutional Practices of 22nd Judicial Circuit, Calling for Reform

ArchCity Defenders, the St. Louis Public Defender’s Office, The Bail Project, American Civil Liberties Union (ACLU) of Missouri, Mound City Bar Association, and the Roderick & Solange MacArthur Justice Center sent a letter to the Judges and Court Administrator of the 22nd Judicial Circuit, to inform them of a troubling practice by the Circuit which allows a private pretrial services and electronic monitoring company – Eastern Missouri Sentencing Services (EMASS) – to demand money from poor St. Louis residents with the threat of arrest if a person cannot afford payment. 

The co-signed letter delivered today outlines the ways in which the private pretrial services relied upon by the 22nd Judicial Circuit violate the constitutional rights of individuals awaiting trial and make for ineffective public policy. The letter also highlights examples of people who have been adversely impacted by EMASS supervision, and concludes with recommendations for the Circuit to remedy these issues.

Jocelyn Garner is a mother and grandmother residing in St. Louis, who was released from the Workhouse and court ordered to sign up with EMASS.

“I haven’t been convicted of anything. I’m not on probation. I’m not on parole, but yet I’m paying fees just to stay free. I’m paying $30 a month to keep my freedom,” said Ms. Garner, one of many people in St. Louis who have been adversely impacted by this punitive practice.

Not only does EMASS impose onerous conditions upon many individuals charged with crimes, but it also violates the rights of many pretrial supervisees by triggering re-incarceration simply because someone is unable to pay.

“The people most harmed by these unjust, revenue-generating pretrial supervision services are poor and disenfranchised residents of St. Louis. The practices highlighted in this letter not only jeopardize someone’s individual liberty, they reveal an expanding landscape of mass incarceration through the proliferation of a money-based electronic monitoring industry. The status quo of mass pretrial detention is already a moral outrage, but to condition freedom upon payment to a private company is just grotesque,” said Blake Strode, Executive Director of ArchCity Defenders.

Pretrial release is our constitutional and statutory presumption in Missouri, but cash bail and unaffordable pretrial services continue to incarcerate public defender clients unnecessarily.  The Chief Justice of Missouri has reminded the courts that jails should be reserved only for those who pose danger or risk of flight,, but in the City of St. Louis the jails are occupied by too many citizens who are there simply because they are poor,” said Mary Fox, District Defender, St. Louis City Trial Office.

The letter cites the Fourteenth Amendment to the U.S. Constitution and Missouri law as establishing a right to pretrial liberty. Additionally, under the Fourteenth Amendment, the Equal Protection Clause prohibits punishing people, including returning them to jail, simply because they are poor. Incarcerating individuals without due process also violates the Fourteenth Amendment of the Constitution.

Before an individual is ordered to EMASS supervision, no inquiry is made into whether or not they are able to afford the EMASS fees. The majority of individuals referred to EMASS are indigent, which is reflected in the fact that the majority of EMASS supervisees are people represented by the Public Defender’s Office.

The Bail Project, a national bail fund with one of its first sites in St. Louis, is also among the signatories to the letter. “As our program demonstrates, people can be released pretrial and will return to court without monetary conditions or onerous requirements such as electronic monitoring,” said Robin Steinberg, CEO of The Bail Project. “What is needed are adequate court notifications and voluntary social services, not digital jails. We urge the Circuit to reconsider its use of this technology, or at the very least, implement the recommendations outlined in this letter to mitigate some of the harms it is causing.”

The letter recommends the following reforms made to the Circuit:

  • Waive fees where someone is found to be unable to pay the fees charged by EMASS but a court continues to require supervision as a condition of bond (pursuant to Section 8 of the contract). This determination will require that an inquiry into someone’s ability to afford EMASS fees occur before requiring EMASS as a condition of release.
  • Stop the practice of incarcerating for failure to pay EMASS fees. Where someone is unable to afford EMASS fees, require a hearing before issuing a warrant for their arrest. Historically, such hearings have occurred in Division 16 and should be instituted across the board. At the hearing, the Court would inquire into an individual’s ability to afford the condition, as well as whether supervision is necessary at all, before taking any further action.
  • Require that EMASS specifically inform the Court where the inability to pay is the reason for alleged noncompliance with conditions. This Court should instruct EMASS that whenever a person’s only issue with EMASS is failure to pay fees EMASS shall report only that the individual failed to pay fees assessed by the company.
  • Evaluate the Circuit’s current contract with EMASS and EMASS’s current practices and services in light of the legal and constitutional implications of such practices. This evaluation should engage those currently subject to EMASS’s conditions.   

A copy of the official letter can be found online here.