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Explainer: What Would Proposed Bail Changes Mean for Wisconsin?

The Capitol Times: Jack Kelly | Published on 2/22/2023

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A proposed amendment to Wisconsin’s Constitution could have major effects on the state’s justice system, two criminal law experts told the Cap Times.

Last week, the Assembly voted 70-21 — with several Democrats joining Republicans in support — to advance a constitutional amendment that would make small tweaks to the state’s bail system. The state Senate will consider the same measure Tuesday.

“This would be a catastrophically bad idea for Wisconsin,” said Jessa Nicholson Goetz, a criminal defense attorney with Nicholson Goetz & Otis in Madison. “It's going to be expensive. It's going to increase crime and it's not going to solve any of the problems (lawmakers) think it will.”

This is not the first time the proposed amendment — which would, among other things, broaden the criteria judges can consider while imposing cash bail — has been introduced, but the Waukesha Christmas parade killings, as well as the shooting of an off-duty police officer in Milwaukee, have injected new urgency into lawmakers’ push to advance the measure.

Opponents of the amendment and legal experts say the measure would disproportionately affect poor people.

There are still several steps before the amendment would become law. First, the state Senate must approve the measure. Then, both the Assembly and Senate must approve the proposal again next year. After that, Wisconsin voters must approve the amendment in a statewide vote.

How does Wisconsin’s bail system work?

In Wisconsin, if someone is arrested for a crime and charges have been filed against them, they appear in front of a court commissioner for an initial appearance. At that hearing, the court commissioner considers the conditions, if any, that someone can be released while their criminal case is pending, said University of Wisconsin Law School professor Cecelia Klingele.

Posting bail can be a condition of release. However, as the state’s bail laws currently exist, judges can impose “monetary conditions of release … only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”

In other words, a court commissioner can only set a cash bail amount if there is reason to think the person making an initial appearance might not show up for their next court date.

It’s important to remember, Klingele said, that in the U.S. justice system, defendants are presumed innocent until proven guilty by the state.

Since that’s the case, she said, “we don't get to punish them before they've been convicted of a crime. That means that the starting point is that people presumed innocent get to be in the community.”

During the initial appearance, a prosecutor will make a request as it pertains to bail. Often, the state requests the accused simply sign a piece of paper — a “signature bond” — saying they will return for their next court date as required, Klingele said.

“Sometimes, either because the person has a past history of not showing up for court or because we have some concerns about the person's likelihood to show up for court — for example, a person who might live out of state or out of county — in those cases, the judge gets to consider whether or not to require the person to post some money — cash bond, we call it — in order to incentivize the person to appear in court with the idea being that if you don't show up in court, you're going to forfeit that money,” Klingele said.

Having some money on the line, she said, might convince someone to show up when they might not otherwise be inclined to do so.

Beyond bail, a court commissioner or judge can also set conditions to someone’s release that “protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

In some rare instances, for certain felony crimes, the Wisconsin Constitution empowers judges to deny someone charged with a crime from being released before they are convicted.

What would the amendment change?

The amendment would eliminate the requirement that “monetary conditions of release” be implemented “only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”

Instead, it would empower judges, when setting a bail amount, to consider the “seriousness of the offense charged, the previous criminal record of the accused, the probability that the accused will appear in court, and the need to protect members of the community from serious harm, as defined by the legislature by law, or prevent the intimidation of witnesses.”

It would also remove the word “bodily” from this line of the state Constitution: “All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

Why do lawmakers want the change?

Republican legislators are billing this amendment as a way to get “tough on crime.”

Assembly Speaker Robin Vos, R-Rochester, one proponent, said during debate on the amendment last week that “during my time in the Legislature, I have supported many efforts to get tough on crime.”

He said the goal of the criminal justice system “is to punish the people who do wrong and then make sure they can hopefully never reoffend.”

“What we're talking about today is making sure that we have folks who have been charged with a crime guarantee that they're going to not only turn up for court, but that they are not going to do anything that would potentially harm the public or do something that would put other folks in danger,” he said on the Assembly floor.

Other Republicans agreed with Vos. Rep. Adam Neylon, R-Pewaukee, said the scenes from the Waukesha Christmas parade rampage stuck with him.

“Another thing that sticks with me that I can't get over is that should have never happened in the first place,” he said. “The person that committed those crimes was out on low bail and should have been locked away. And that’s a story that keeps repeating itself in Wisconsin.”

What effects would these changes have?

Both Nicholson Goetz and Klingele were skeptical that the amendment would actually improve public safety. Instead, they said, it could further burden an already overwhelmed criminal justice system in Wisconsin.

Allowing a judge to impose bail for reasons beyond ensuring a defendant would appear at their next court hearing would likely result in more poor people being incarcerated, the two legal experts said.

“It won’t (make communities safer),” Nicholson Goetz said of the amendment. “And I don't even know how they think that works.”

She went on: “Are we just going to say, ‘Oh, you're too poor to be able to be released?’ I'm unclear as to how they think this is going to prevent crime.”

Both Nicholson Goetz and Klingele noted that a huge portion of Wisconsinites do not have $500 available to post bail. They pointed to the COVID-19 pandemic-induced financial struggles as proof that even a few hundred dollars could be incredibly punitive.

Accordingly, if judges are setting cash bail more often, the state will likely see more people incarcerated in county jails — often waiting months or even more than a year for their constitutionally guaranteed jury trial, they said.

The effects snowball from there. More people will be held in county jails, at taxpayers’ expense. Additionally, incarcerated people are more likely to lose their jobs and have their housing stability threatened, which can have a profound effect on their communities and families, Nicholson Goetz noted.

All the while, people charged with crimes who might be considered dangerous but can afford to post bail will continue to be released.

Instead, Nicholson Goetz and Klingele noted that addressing the backlog of pending court cases could help keep communities safer.

“I think the remedies have to involve looking more strategically at the causes for backlogs in the circuit court,” Klingele said. “But I don't think the answer is always just throwing more money at a problem. It may be that we need more judges in some parts of the state than others to be able to move cases more quickly.”

She continued: “It may be that we're dealing here with a shorter-term problem caused by COVID and we need to just do some temporary infusions of resources to get ourselves caught back up. I don't think we can know that without studying the nature of that particular problem. But instead, we're getting distracted by trying to do quick fixes to problems that maybe we don't actually have.”

“And that certainly isn't going to remedy the problem,” Klingele said. “In fact, it's likely to create a lot of new ones.”

GOP lawmakers have repeatedly noted that Darrell Brooks, who prosecutors say drove through the Waukesha parade, was out of jail after posting $1,000 bail in a domestic violence case.

In a separate case from 2020, Brooks’ original bail was $10,000. However, it was later lowered to $500 because a backlog of court cases meant Brooks’ demands for a speedy trial could not be accomodated.

If trials are able to be held faster, people charged with crimes can either be exonerated or convicted and punished — as the Constitution allows. Under the amendment, Nicholson Goetz said, Wisconsin would likely see more people incarcerated without yet having been convicted of a crime.

What are opponents of the amendment saying?

Opponents of the amendment, including Wisconsin Attorney General Josh Kaul and Rep. Evan Goyke, D-Milwaukee, also said the resolution won’t make communities safer.

Both Kaul and Goyke said Wisconsin needs to bolster the state’s pretrial detention system.

Kaul encouraged lawmakers to take a look at the federal system for pretrial detention. Nicholson Goetz explained that the federal pretrial system involves an alleged offender working with a federal counselor to make sure that pretrial release conditions — which don’t often include cash bail — are not violated. So long as those conditions aren’t broken, defendants can remain in the community until trial.

“In my view, that system is both better at protecting public safety and fairer than Wisconsin’s system,” Kaul said. “We can and should do more to strengthen our pretrial system.”

Speaking from the Assembly floor, Goyke said without a pretrial detention system, while “using only cash bail, two different defendants under the same charge — equal risk, equal danger to the community — can have different outcomes.”

“One that has access to means can buy their way out of custody and go home or go back into the community,” he said. “The other, if they can't, stays in custody. This isn't an equal or fair or transparent system. Under this system release isn't about risk. It isn't about danger. It's about money. And money only will not keep us safe.”

Kaul agreed. In a statement last week, he said, “Rich people who commit serious crimes, drug kingpins, and gang leaders shouldn’t be able to pay their way out of jail before trial simply because they have access to money. When people charged with serious crimes present a danger to the public, they should be detained pretrial.”