Author: Carlie Smith
Editor: Kyra McKeska
Spring 2022
Wisconsin bail laws have come under scrutiny following instances of repeat criminal offenses after low cash bails set by court commissioners. The current guidelines are set in Chapter 969 of the Wisconsin Statutes. They have not been modified since the Wisconsin Bail Reform Amendment in 1981, which permitted the legislature to allow courts to deny, revoke, or set bail terms. More than forty years later, the Wisconsin GOP is proposing a new amendment to the state constitution that would allow the consideration of multiple factors in determining a suspect's bail. While proponents of the reform highlight the need to ensure public safety, opponents argue that the changes would only further the inequities in the justice system.
In Wisconsin, bail consists of two parts: the amount of money to be posted for release from jail and the rules and conditions the arrested person must follow while on bail. Within a few days of an arrest, the arrested person is brought in front of a court commissioner who sets the bail amount, cash or signature bond, and the bail conditions. If a cash bond is set, the arrested person or someone on their behalf must pay the bond amount to be released from jail. This type of bond differs from a signature bond, in which no cash must be posted. Instead, the arrested person signs a bail form indicating their promise to pay a certain set bail amount if they violate the bail conditions set by the court. The bail amount is often refunded to the payee during the weeks following case closure. The bail conditions that a defendant must follow often require them not to contact any victims or witnesses of the alleged crimes, to attend all court appointments, and to refrain from drugs and alcohol.
The Wisconsin Constitution currently limits cash bail amounts to the minimum dollar amount necessary to ensure that the defendant comes to court. Article I, Section 8, Clause 2 of the constitution states that "Monetary conditions of release [cash bail] may be imposed...only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court" (Wis. Stat. § 969.01 2021-2022). This past December and January, Wisconsin legislators introduced a handful of bills in both the Senate and the Assembly to further restrict and regulate the imposition of bail. If passed, AB 838 would require judges to set a minimum $10,000 bond for any defendant with a prior felony conviction or a conviction for a violent misdemeanor. In addition, AB 840 would require judges to set a minimum $5,000 bond for any defendant with a prior conviction for bail jumping. Further, AB 839 would require the Wisconsin Department of Justice to begin collecting bail data from every county circuit court. Lastly, under AB 933, a judge would not be permitted to release a defendant without bail or on an unsecured bond if the defendant has previously failed to comply with a condition of his or her release for the present offense.
The most notable of recent legislative efforts is Assembly Joint Resolution (AJR) 107. This past February, the Wisconsin Senate passed AJR 107, a proposed amendment to the constitution that gives judges more flexibility in setting cash bail amounts. AJR 107 and its subsequent amendments would allow judges to consider the seriousness of the alleged crime, the past violent criminal history of a defendant, the potential dangers posed to the community, and the likelihood that the defendant would return to court when setting cash bail. The ultimate goal of this resolution is to give courts the power to set higher cash bail, preventing suspects from being released without forfeiting large sums of money first. In order to amend the state constitution, the exact resolution, or written motion, must be passed by both houses of the Wisconsin state legislature in two consecutive sessions. Then, the resolution is placed before voters as a referendum in a statewide election. This means Wisconsin Governor Tony Evers will not have a hand in passing or vetoing the amendment. Instead, Wisconsin voters will play a role as early as April 2023 (Wispolitics.com, 2022).
While Republican legislators are not relying on the governor's cooperation, they are facing significant opposition from Democratic legislators. Opponents of the proposed cash bail reform argue that Wisconsin should move entirely from cash bail, noting that the current system disproportionately impacts low-income and Black defendants. For an economically disadvantaged defendant, even a low bail amount of a couple of hundred dollars may be too much. The pretrial detention time that the defendant will face if unable to meet this cash bail amount may further worsen their economic position if it leads to loss of employment or housing. According to The Wisconsin State Bar, research shows that pretrial detention leads to worse case outcomes for the defendant, as it hinders their ability to develop a strong defense and pressures the defendant to plead guilty quickly, regardless of the facts of the case.
Furthermore, studies indicate that defendants facing pre-trail detention have a higher conviction rate, are more likely to receive a jail sentence, and, on average, receive longer sentences than otherwise similar defendants who can secure pretrial release (Government Relations, 2022). Current racial disparities in the justice system magnify these effects for BIPOC. For example, according to a 2019 study of national incarceration rates, young Black men are about 50% more likely to be detained pretrial than white defendants. Additionally, Black and brown defendants receive bail amounts twice as high as bail set for white defendants – and they are less likely to be able to afford it (Sawyer, 2019).
If the proposed bail reform bills were to pass, the additional considerations in determining a defendant's bail would mean more time spent on each case in court systems already facing extensive case backlogs. For example, the Milwaukee County Court System is experiencing an unprecedented amount of violence, as 2021 broke the county's murder record previously set in 1991. The overwhelming caseload has created a bottleneck for the District Attorney's office, often leaving court commissioners as little as ten minutes for a single bail hearing (TMJ4 News, 2021). Further concerns regard jail space, as the increase in defendants detained pretrial would add additional pressures to the county's jail system, which is already nearing capacity (TMJ4 News, 2022). The Milwaukee County Court system would need an influx of resources in the coming years to keep up with the obstacles threatened by the proposed bills.
The following table contains a list of current Senate bail reform bills and their corresponding Assembly bills. Wisconsin voters can follow the progress of bail reform efforts by searching any of the following bills at https://docs.legis.wisconsin.gov/search.
References
A.B. 838, 2021 Biennium, 2021 Reg. Sess. (Wis. 2022).
https://docs.legis.wisconsin.gov/2021/proposals/ab838
A.B. 839, 2021 Biennium, 2021 Reg. Sess. (Wis. 2022).
https://docs.legis.wisconsin.gov/2021/proposals/ab839
A.B. 840, 2021 Biennium, 2021 Reg. Sess. (Wis. 2022).
https://docs.legis.wisconsin.gov/2021/proposals/ab840
A.B. 933, 2021 Biennium, 2021 Reg. Sess. (Wis. 2022).
https://docs.legis.wisconsin.gov/2021/related/proposals/ab933
A.J.R. 107, 2021 Biennium, 2021 Reg. Sess. (Wis. 2022).
https://docs.legis.wisconsin.gov/2021/proposals/ajr107
Sawyer, W., 2019. How race impacts who is detained pretrial. [online] Prisonpolicy.org.
Available at: <https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/> [Accessed 6 March 2022].
TMJ4 News, 2021. Do Wisconsin's bail laws need to change after the Waukesha Christmas
parade tragedy?. [video] Available at: <https://www.youtube.com/watch?v=A5LYhK86r_A> [Accessed 6 March 2022].
TMJ4 News, 2022. GOP lawmakers target repeat offenders in Wisconsin bail reform
legislation. [image] Available at: <https://www.youtube.com/watch?v=cph8KWcWP2w> [Accessed 6 March 2022].
Wis. Stat. § 969.01 (2021-2022). https://docs.legis.wisconsin.gov/statutes/statutes/969/01
Wisbar.org. 2022. Government Relations. [online] Available at: <https://www.wisbar.org/aboutus/governmentrelations/Pages/Bail-Reform.aspx> [Accessed 6 March 2022].
Wispolitics.com. 2022. Sen. Wanggaard: Bail reform clears Wisconsin State Senate |
WisPolitics.com. [online] Available at: <https://www.wispolitics.com/2022/sen-wanggaard- bail-reform-clears-wisconsin-state-senate/> [Accessed 6 March 2022].
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