Tug-Of-War Over Future Of Wisconsin's Bail Laws

By Isiah Holmes, Wisconsin Examiner

January 24, 2022

The future of Wisconsin’s cash bail system stirred some of the most drawn-out discussion during Thursday’s Senate Committee on Judiciary and Public Safety. For Sen. Van Wanggaard (R-Racine), a solution may lie in amending the state constitution to allow cash bail to be shaped by considerations other than simply ensuring that an individual appears in court. “The fact is Wisconsin’s bail system has been in need of change for a long time,” Wanggaard said during a committee hearing.

While many may agree with that general statement, opinions are split as to how the system should change, particularly since the Waukesha Christmas Parade tragedy. Calls have grown to make bail laws tougher in Wisconsin after Darrell Brooks, a Milwaukee man who’d been released on $1,000 bail after an alleged assault, plowed a vehicle through a parade killing six and injuring more than 60.

Wanggaard also points to a recent Milwaukee incident where an off-duty detective was wounded by gunfire while intervening in an alleged carjacking as further evidence of a lax bail system. Still, the senator asserts that his interest in the bail laws are not a reaction to these particular events. Rather, Wanggaard says his attention on the bail laws stretches back to 2017.

Currently under the state constitution, bail may only be set to ensure that a person charged with a crime appears in court. Factors like the level of risk the individual may pose to the community may not be taken into account when deciding the amount of cash bail. However, judges do have discretion to consider risk to the community through other means, which can then result in conditions of release like GPS monitoring. Wanggaard admitted during his testimony that, “bail is a legally and constitutionally complicated subject. Therefore changes should be carefully considered and evaluated.” He hoped his proposal, “threads the needle between protecting the public and victims, and preserving the presumption of innocence prior to conviction.”

In the case of Waukesha, a risk assessment analysis had been done on Brooks, but it had not been uploaded when it came time to set Brooks’ bail. This occurred after Brooks’ bail had to be re-evaluated as his chance of a speedy trial was delayed due to the pandemic. While Milwaukee District Attorney John Chisholm described Brooks’ $1,000 bail as “inappropriately low,” he also highlighted chronic staffing and funding issues that contributed to Brooks’ risk assessment not being made available when it needed to be.

Many criminal justice advocates and attorneys have spoken up against policies that could increase pre-trial detention. Adam Plotkin, legislative liaison for the State Public Defender’s Office, raised concerns during the hearing that such a change would remove due process requirements from the Wisconsin state constitution, which are guaranteed by the U.S. constitution. Plotkin said such a change could lead to “a significant increase in the number of people held pre-trial.” He went on to note that, “in addition this proposal runs counter to what many other states are looking at when considering the future role of bail and monetary conditions in the criminal justice system. As Senator Wanggaard said at the outset of his testimony, the bail system in Wisconsin is in desperate need of reform. I think the difference would be in what form practitioners feel is necessary.”

Rather Plotkin suggested a preventive detention model, “that significantly disincentives the role that money plays in the system.” It’s a strategy that relies on judicial discretion and the use of risk assessment tools. “Currently there are at least 22 states and the federal courts that use a preventive detention system rather than monetary bail,” said Plotkin. Ultimately, the goal is to ensure that low-risk people accused of crimes aren’t detained for unnecessarily long periods of time. Plotkin highlighted that, “detaining both low- and high-risk offenders in the same facility increases the likelihood of the low-risk offender engaging in future criminal behavior.”

Sen. Lena Taylor pointed to the backlog in cases caused by the pandemic, and lack of funding for attorneys’ offices and jails. Her fear is that with more people held in pre-trial detention, local municipalities won’t be able to keep up and problems will get worse. Taylor inquired to the committee’s legislative counsel, “In the bill is there anything that funds counties for the increased number of individuals that might be held in their jails?” Since the proposal is a constitutional amendment, there is no funding attached to it.

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Jacob Wise, a defense attorney, argued that the proposal is, in fact, not conservative at all. “I think that it’s telling that this bill is coming out now after the tragedy that occurred in Waukesha,” said Wise. “I don’t mean to diminish that in any way but I don’t think that conservatives have a knee-jerk reaction to changing our operating documents because of one event. I think that conservatives take a longer-view approach at if we need to change our operating documents.”

Wise suggested, “Rather than pushing this forward, commission a study to see how often these are actually a problem. I think that we’d find that it’s not nearly as much of a problem that we think it is.” Wise also cautioned against granting the state more power over people who are presumed innocent. “I don’t think that conservatives generally are in favor of expanding government reach, state power, over individuals — especially individuals presumed to be innocent — and leading to a slippery slope,” Wise argued. He also expressed his concern that keeping more people in pre-trial detention could lead to civil lawsuits over people waiting in jail for attorneys.

A separate bill, introduced by Sen. Julian Bradley (R-Franklin) and taken up later in the committee hearing, would set $10,000 mandatory minimum bails for people with past offenses. Representatives from the Milwaukee Police Association and other law enforcement groups spoke in favor. Taylor objected to the proposal, pointing out that Wisconsin’s incarceration rate of Black residents is the worst in the nation; Bradley countered that most of Milwaukee’s homicide victims were also Black.

The backdrop to the bail debate in the Senate committee was a joint resolution offered on the same day during the Assembly’s floor session, supported by Democrats and Republicans alike, honoring those whose lives were lost during the Waukesha tragedy as well as the medical personnel and police who responded.

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