According to the bipartisan nonprofit the Prison Policy Initiative, a third of all Wisconsin county jail inmates between 2009 and 2013 were locked up solely because they couldn’t afford a low cash bail. In other words, they’re behind bars before having been convicted of anything.
In fact, people who are held in jail prior to trial make up the fastest growing population in Wisconsin’s jails. Nationwide, approximate 75% of people held in local jails have yet to be convicted of any crime.
Naturally, being held in jail for weeks, months or even years before trial creates serious hardships. People lose their jobs, their housing — they sometimes even lose their parental rights. Far, far too many plead guilty because it will get them out of jail faster than waiting for trial.
Beyond those natural consequences, studies have shown that being held in pretrial detention actually increases your chance of conviction and is associated with longer sentences. This could be because of the guilty pleas. It could also be because people who can’t afford bail typically can’t afford defense attorneys, either. And the Wisconsin public defender system is constitutionally underfunded.
In Wisconsin, cash bail is for one purpose only: to ensure the defendant returns for trial. Non-cash bail conditions, like alcohol and drug testing, can also be imposed to reduce the risk that defendants may commit new crimes while awaiting trial. Yet judges typically set cash bail based on the severity of the charges and limited information about the person’s criminal record.
Could an evidence-based bail assessment help?
Now, eight Wisconsin counties (Milwaukee, Eau Claire, Marathon, Outagamie, Chippewa, La Crosse, Rock and Waukesha) are taking part in a national initiative to make cash bail decisions based on evidence. They are developing a standardized scoring system that would consider factors like the defendant’s prior records and the severity of their crimes. This is in an effort to predict the likelihood that the person would abscond or re-offend.
Yet the nonprofit Center for Court Innovation found that most, if not all, of these “evidence-based” risk assessment tools are just as biased against people of color and the poor as the existing system. The only way to eliminate the bias was to automatically release, without bail, anyone who isn’t charged with domestic violence or a violent felony. That approach is being employed in other cities and states.
Indeed, releasing everyone who ranks low- or medium-risk would dramatically decrease unjust pretrial detention and jail overcrowding. But any risk assessment tool adopted as part of this initiative would only provide information; it can’t tell judges what to do. Will Wisconsin judges embrace a massive reduction in pretrial detention?
