Recently, the legislature passed a measure to change how bail is determined in Wisconsin. It has passed twice in consecutive legislative sessions, which means that it will now head to our April ballot as a constitutional amendment.
How bail is determined is critically important. Historically, bail has too often been set for far more than average people and their families can pay. This gives people an impossible choice: stay in jail for months or even years awaiting trial or plead guilty just to get their cases resolved.
Pre-trial detention causes real harm, especially to over-charged or innocent people. Those who can’t make bail typically lose their jobs, often their housing and sometimes their kids. They also spend more time incarcerated after conviction than those who make bail.
According to statistics, pre-trial detention falls most heavily upon the poor and people of color. Wealthy defendants can easily make bail.
Many states are considering bail reforms to reduce the disparate effect on poor people. Wisconsin’s measure does not follow this national trend.
Ideally, a fair bail system would require judges to provide due process when setting bail and take into account many factors, including the possible dangers but also mitigating factors. Judges would ideally remember that our constitution considers people innocent until proven guilty in a court of law.
Wisconsin’s proposed amendment would require judges to focus on all relevant factors when setting bail, not just on setting a cash bail amount that will motivate the defendant to return for their court hearings. The relevant factors, according to the proposed amendment, include:
- whether the person might fail to appear in court
- whether the person is accused of a violent crime
- whether they have a prior conviction for a violent crime
- whether they pose a risk of “serious harm” to the community
- the need to prevent witness intimidation
- any potential affirmative defenses of the accused
That sounds fair enough, but it ignores other mitigating factors.
The proposed amendment was provoked in large part by the fact that Darrell Brooks, who was convicted of killing six people by driving through a 2021 Christmas parade in Waukesha, was out on $1,000 bail at the time.
As too often happens, a particularly aggravated case causes politicians to grab headlines by changing the law for everyone. In truth, no one could predict an individual charged with a crime like Brooks would drive through a parade route and kill and injure multiple people. Setting a high bail to prevent his release pretrial would have been unlikely even under this new law.
This change may have little practical effect. Some judges already set bail far higher than is necessary to motivate a defendant to return to court, essentially imposing preventive detention for those defendants even though they are presumed innocent.
Wisconsin has always had a separate statute that allows preventive detention in very serious cases, but it has rarely been invoked. Instead, prosecutors recommend – and most judges impose – very high bail that has the same effect of keeping the defendant incarcerated pretrial. so this amendment will probably change little.
In fact, legislative leaders cynically know this, but they are pushing the amendment onto this April’s ballot to create larger voter turnout for a critical state supreme court election.
That is no way to affect public policy changes in our criminal justice system. The number of yearly U.S. jail admissions has doubled over the past three decades, even as crime rates have fallen. We can’t keep incarcerating so many people before trial or the premise of innocent until proven guilty means nothing.
