For the next bail reform battlefield, look to St. Louis

by Sophie Hurwitz

ST. LOUIS, MO—Last August, Ferguson Councilman Wesley Bell unseated the veteran St. Louis County District Attorney Robert McCullough, becoming the first new District Attorney the county had seen since 1991. McCullough was best known nationally as the prosecutor in the trial of Darren Wilson, the police officer who killed unarmed teen Michael Brown in 2014.

Now, the elderly conservative was replaced by a young, Black progressive. Proponents of bail reform saw Bell’s election as a watershed moment, but the problems plaguing the St. Louis justice system are not over. The metropolitan area is known nationally for police violence, high crime rates, and extreme de-facto racial and economic  segregation even in 2019.

These disparities are visible even in the health of St. Louis residents—there is an 18-year lifespan gap between the predominantly-poor and Black 63106 ZIP code in North St. Louis City and the white, wealthy 63105 ZIP code in the Clayton area of St. Louis County—geographically separated by only 10 miles. With Bell’s election, many St. Louis residents began to hope that some of the inequalities manifest in criminal justice would be addressed.

Bell, who has been in office for about two months, must face many obstacles if he wants to change the St. Louis metropolitan area’s record with regards to bail. Bell, who is prosecutor in the county (in St. Louis, there are separate city and county legal systems) has declared that courts will no longer require cash bail for “low-level and nonviolent offenders”—a vague class, given that sometimes crimes committed while a person owns an unregistered firearm can be classed as violent. Cash bail is currently used as a precondition of release to ensure that those accused of crimes come to court for their trials. However, it can also be used as a way to incarcerate people before they have been convicted of anything; if you can’t pay your bail, you stay in jail as long as it takes for your case to go to trial. According to the “Close the Workhouse,” report, released in 2019, that means an average of 291 days in jail before you can go to trial.

In the City, unlike the County, cash bail is still being assigned for nearly all crimes. Even marijuana possession requires bail in the City. In a city where about a fourth of the population lives below the poverty line, cash bail can very often lead to imprisonment by default. At the moment, most of those ‘prisoners of poverty’ are held in the St. Louis Medium Security Institution, more popularly known as the ‘Workhouse,’ which has been under fire since summer 2017 for the living conditions inside. Prisoners have complained about poor sanitation, a lack of health resources, and rotten food. According to St. Louis City statistics, 90% of those incarcerated are there only because they cannot afford bail, not because they have been charged with a crime.

The civil rights activist law firm ArchCity Defenders filed a federal lawsuit at the end of January 2019 to mitigate the use of cash bail in the City of St. Louis, which could lead to the closing of the Workhouse for good. The firm is no stranger to politics; they helped organize the #blackmamabailoutSTL campaign to bail Black mothers out of jail, for example, and successfully sued the City of Ferguson for running what they deemed a debtors prison. On Jan. 29, ArchCity issued a lawsuit against the City of St. Louis, City Circuit Attorney Kim Gardner, and Sheriff Vernon Betts among others arguing that St. Louis bail assignment practices are unconstitutional. In a class-action suit with four named plaintiffs, they argued that the St. Louis City court system’s failure to account for the ability to pay violates plaintiffs’ constitutional rights to a speedy trial. The lawsuit argues that such conditions create a situation of de facto imprisonment for the poor.

“Not only are bail amounts higher in St. Louis than the national average, judges set bail solely based on police reports and allegations made by police. This unconstitutional scheme leads to the systematic jailing of presumptively innocent people solely because they are impoverished,” the law firm’s press release said. The median bond in St. Louis, according to a report released by the Close the Workhouse campaign, is $25,000. This is completely unaffordable to the average St. Louisan who has a per capita income of $25,434, and is higher than the national median bail bond amount of $10,000.

According to Sima Atri, an attorney for ArchCity, the firm was able to obtain pre-trial release for two of the four named defendants by requesting a Temporary Restraining Order against the city. In the other two cases, however, “The judges set cash bail despite saying we know they can’t afford this bail, and they didn’t make any sort of findings to say, ‘we still believe this is the least restrictive means necessary.’” As those two plaintiffs reported that they were being harassed by guards at the Workhouse, they found private donors to bail them out. “We didn’t want our plaintiffs to stay in jail because…they said they were facing retaliation from the guards at the Workhouse,” Atri said.

The other hundreds of people covered by the class-action suit, though, “Still haven’t had hearings,” Atri said. “So they continue to keep people incarcerated who haven’t had constitutionally-compliant hearings, and people who have been arrested since then are also not getting constitutionally-compliant hearings.”

After the lawsuit: what happens now?

Since the cash bail lawsuit, some things have changed on a person-by-person basis, Atri said. The judges who run the first-appearance docket, where judges tell people what their bail is, have started setting bail less frequently. “What we have seen at those hearings is that more people are being released than there were before,” Atri said. “There’s been a huge increase in the number of people who are being released and bail is not being set.”

Atri hopes that judges see that the majority of the time, cash bail is unnecessary. “If you were actually doing real hearings,” she said, “the vast majority of people would not be a risk to public safety or be a flight risk and have to be put in jail the entire time.”

As Bell strives for reform in the County, other officials are attempting to reform the carceral system in the City. Among them is Megan Green, a member of the Board of Aldermen who has been campaigning for years to close the Workhouse. Two years ago, the City’s attention was focused on the Workhouse’s  lack of air-conditioning during a summer with record heat which resulted in inmates screaming for help out of the windows. After an outraged campaign for air conditioning, activists began to demand that the building be closed altogether.

“The way that we get it closed,” Green said, “is by eliminating cash bail for nonviolent offenders, so we aren’t filling up the Workhouse with people who are just too poor to afford their bail. So the last couple of years have really just been spent changing that narrative.” Now, there is an ongoing campaign in the City to close the Workhouse. This might be a way to work towards bail reform, too: if cash bail is mostly eliminated, Green says, there will be no reason to keep the building open.

EMASS: mass incarceration outside the jailhouse

Even if St. Louis eliminated cash bail, electronic tools of incarceration may take its place. In both the City and County, it is becoming increasingly common for judges to assign little or no cash bail only on the condition that individuals sign up for a GPS monitoring system—which these individuals, who were too poor for bail in the first place, have to pay for themselves. The company that provides these systems (which usually come in the form of large, clunky GPS monitoring ankle bracelets) for both the city and county is called Eastern Missouri Alternative Sentencing Services (EMASS).

Jocelyn Garner, a grandmother living in St. Louis City, was one woman who was assigned EMASS monitoring as a condition of her release. Garner’s bail was initially $100,000 for attempted assault, an amount that was laughably impossible for her.

“You know I’m not in a position where I have a job where I could even get close to affording $100,000 in cash,” she said. “I’m a bartender, you know? And of course they know this, because they ask you questions about your employment, but I guess that’s just to have on file. I know it doesn’t go towards deciding if you can afford a reasonable amount of bail. I don’t work for Apple or Bill Gates or nobody, I work for a simple little mom-and-pop bar. $100,000 is more than I’ve made in probably my lifetime.”

Eventually, Garner’s bail was lowered on the condition that she limited her movements, followed a curfew, and made bimonthly payments to EMASS until her trial date. EMASS payments, according to their website, can be anywhere between $30 and $300 per month. In Garner’s case, it has been several months and she has not yet gone to trial. The payments, Garner said, are becoming a strain on her finances in the same way cash bail would have been. It is not $100,000, but it is still likely to send her back to jail if she cannot pay.

“I’m getting behind, I’m not even going to lie about that, I’m definitely getting behind… you know, it’s getting kind of difficult to be able to afford this,” she said. If Garner is unable to make her payments, she will be thrown back into the Workhouse where she started.

Michelle Alexander, author of the seminal book on criminal justice The New Jim Crow, sees an expansion of this phenomenon in which cities move away from cash bail but still hurt individuals like Garner. The current system of mass incarceration, to paraphrase Alexander’s book, grew out of the post-Civil-war convict leasing system, which was meant to exploit Black people’s labor after slavery formally ended.

Historical practices of incarceration grew into the current system in which the U.S. houses 22 percent of the world’s prisoners, despite having only about 4 percent of the world’s population. Now that public opinion is turning against mass incarceration, however, the system of mass incarceration is shifting towards a more amorphous system—what Alexander calls ‘e-carceration.’ If one is made to pay for their own monitoring as the price of their freedom, that means freedom is dependent upon one’s ability to pay. As individuals fail to pay their monitor upkeep and check-in fees, warrants are issued for their arrest, and despite having nominally been ‘freed’ pre-trial, they are shuffled back into the prison system yet again.

“Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of ‘e-carceration’ that may prove more dangerous and more difficult to challenge than the one we hope to leave behind,” Alexander wrote in a recent New York Times piece, where she discussed systems like EMASS as continuations of the system of mass incarceration.

EMASS was founded in 1991, and has since expanded to control all pre-trial monitoring for St. Louis City and County, as well as much of eastern Missouri. On its website, the company markets its services for “individuals who are dealing with behavioral problems related to substance abuse, anger, or other legal issues.” EMASS certainly profits from the judges assigning their services, even as the political climate shifts against the use of cash bail.

According to the latest publicly-available EMASS contract and report to St. Louis City, the company has been profiting off of this pretrial monitoring: in the 5 years before 2011 their profits went up 43%. The St. Louis City circuit court does not track or have access to information on how many people are being sent to EMASS. In response to emails, both the St. Louis City and County Clerks said that the number of people assigned EMASS as a condition of bail is not actually public record, as EMASS is a private company.

“It’s all just designed to keep you down”

In the County, Wesley Bell hopes to follow the lead of other cities in reforming cash bail. “I don’t think there’s anything unique about the challenges we are facing compared to what any other community is facing,” he said. “It starts with education, and outreach. People have to understand why we’re doing these changes, and why they are more effective…why they keep residents safer. I don’t think we’re facing any challenges that any other jurisdiction hasn’t faced when looking at situations like this…we are not trying to reinvent the wheel.”

There are many efforts underway to reform the cash bail system in St. Louis City and County. But for people like Garner, it is unclear whether any of these efforts will help her navigate a system that, in her words “makes it impossible, basically, to get out… It’s like minority lives don’t matter out here. To me, it’s all designed just to keep you down.”

Sophie Hurwitz is a sophomore at Wellesley College. She is also a writer for the St. Louis American and The Wellesley News.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.

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