The U.S. Department of Justice recently expressed concern about the unjust imposition of fines and fees by state and local courts in violation of the civil rights of those accused of crime, quasi-criminal ordinance violations, and civil infractions.

The DOJ stated that the imposition and enforcement of fines and fees on those who cannot afford them may cause escalating debt that “far too often traps individuals and their families in a cycle of poverty and punishment that can be nearly impossible to escape.”

The agency pointed to other “profound harm” that fines and fees may cause to those who cannot afford them: incarceration for nonpayment; extension of probation and parole; and loss of a driver’s license, employment, right to vote, or even a home. These negative effects often apply disproportionately to people of color and low-income communities, said the agency.

The agency also reminded judges and stakeholders to provide meaningful court access for those with limited English proficiency.

The DOJ discussed its concerns about fines and fees in a “Dear Colleague” letter issued April 20 to state and local judges and other justice-system stakeholders.

The DOJ reminded judges of several constitutional principles relating to fines and fees, including:

• The prohibition of fines and fees disproportionate to an offense.
• The prohibition of jailing someone for nonpayment without a prior determination that the person is able to pay and intentionally not paying.
• The requirement that judges consider alternatives before incarcerating individuals for nonpayment of fines and fees.
• The prohibition of requiring payment of fees to access judicial processes.
• The requirement of proper notice when imposing and enforcing fines and fees.
• The prohibition of fines and fees imposed in a way that intentionally discriminates against a protected class.

​The agency recommended assessment of each individual before imposition of monetary penalties, as “fines and fees will affect individuals differently depending on their resources.”

Imposing fines and fees on youth is especially concerning and may be excessive and unreasonable, the DOJ said. Many minors “are too young to legally work, are of compulsory school age or full-time students, have great difficulty obtaining employment due to having a juvenile or criminal record, or simply do not yet have employable skills typically expected of adults.” Judges should presume that youth are unable to pay fines and fees, the DOJ said.

The DOJ urged judges and other justice-system stakeholders not to use fines and fees as a means to raise government revenue, divorced from the purpose of punishment.

The DOJ pointed to Supreme Court case law indicating that courts “have an affirmative duty to determine an individual’s ability to pay and whether any nonpayment was willful before imposing incarceration as a consequence,” even when a defendant does not raise the issue.

State and municipal courts must consider alternatives to incarceration for nonpayment, and should consider alternatives to other serious consequences such as drivers’ license suspensions as well, the DOJ said. As alternatives, the DOJ suggested penalty-free payment plans and amnesty periods during which warrants are canceled or fees waived.

The DOJ also suggested alternatives to fines and fees as sentences in the first place. Attendance at a traffic safety class or community service could replace the fines and fees, the DOJ said.

The agency recommended that courts and other justice-system officials assess whether their penalties for nonpayment of fines and fees disproportionately affect certain groups. The agency pointed in particular to the suspension of drivers’ licenses for failure to pay, which may disproportionately affect people of color.

The DOJ discussed statutory requirements for courts that receive federal funding to provide language assistance for limited English proficient (LEP) individuals regarding imposition and collection of fines and fees. “Such assistance includes, but is not limited to, ensuring that court users with LEP have competent interpreting and translation services during all related hearings, trials, and motions, provided at no cost,” the DOJ wrote.

The agency said its Office for Access to Justice would follow up with a guide including best-practice examples from states and municipalities, and its Office of Justice Programs would seek a provider for training assistance for jurisdictions wishing to examine their fines and fees policies and practices.

The DOJ defined “fines” as monetary punishments for infractions and “fees” as required payments that go toward activities unrelated to the conviction or punishment.

Wisconsin Justice Initiative today urged Milwaukee County voters to tell legislators what they think about marijuana legalization.

Milwaukee County voters will see a legalization referendum question on the November 8 ballot.

The question asks whether voters favor “allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana.”

At the press conference, WJI President Craig Johnson discussed criminal justice-based reasons for legalization, including the need to end sanctions that are enforced disproportionately against people of color. Current felony sanctions for possession cause lifelong harm by serving as a gateway into the criminal justice system, he said.

Johnson was joined by Wisconsin Justice Initiative Action President Joseph Czarnezki. Czarnezki summarized the benefits of taxing revenue from marijuana sales. “Our neighboring states, Michigan and Illinois, have legalized it. Why should we be sending all our tax dollars to those states?” he said.

Czarnezki noted that in a similar referendum in Milwaukee County four years ago, voters overwhelmingly voted “yes” for legalization. The current referendum is necessary because of the “need to keep the pressure on the state Legislature,” he said.

Milwaukee County Supervisor Ryan Clancy, who sponsored the resolution putting the referendum on the ballot, highlighted how criminalization hampers hiring and employment efforts. “These things are not just locking people up, it’s not just putting people back in jail and giving more work to our Milwaukee County employees, but it’s keeping people from getting jobs in the first place.”

Wisconsin Sen. Melissa Agard talked of the legislative bills she has sponsored for a decade. Those bills have been blocked or stuck in the Legislature, and voters need to tell legislators to get them moving, she said.

Cannabis educator and researcher Brad Rowe discussed how legalization and licensing of marijuana create safer usage and the opportunity for open discussion about marijuana use. For instance, someone using marijuana could call for medical help without the response of police officers as well, he noted. He described how current law impedes research into the medical benefits of cannabis for treatment of chronic pain, nausea, or other conditions.

Andrew Hysell of Forever Wisconsin served as emcee of the press conference.
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Similar referendums will be on the ballots in Dane and Eau Claire counties and in the cities of Stevens Point, Kenosha, Racine, Appleton, and Superior.

WJI supports the legalization of marijuana to avoid the disparate and severe impact on minority communities.

Listen to a recording of the press conference by clicking the arrow at the top of this story.

On June 22 Angela Lang, the executive director of BLOC (Black Leaders Organizing for Communities), and Keisha Robinson, BLOC's deputy director, joined WJI to chat about their organization's activities, which include court watching, canvassing neighborhoods, and developing future leaders in the Black community. 

BLOC works through coordinated political action to ensure a high quality of life and access to economic opportunity for members of the Black community in Wisconsin and to empower Black leaders with the tools, training, and resources needed to organize and guarantee that their issues, concerns, and values are represented at all levels of government. Over just a few years BLOC has become a forceful nonprofit in the Milwaukee area.

If you missed the Salon, or if you want to watch or listen again, click on the link below for the recording.

​This and recordings of several other past salons are also available on WJI's YouTube channel here.

LBy Gretchen Schuldt

Defendants facing bail-jumping charges are among the favorite targets of those pushing for tougher bail standards in the wake of the Waukesha parade tragedy.

"If someone has proven through past behavior that they...cannot abide by the conditions of a bond imposed by the court, it only makes sense that they should be required to have a minimum vested interest in attending court dates and integrating into society," said Ryan Windorff, president of the Wisconsin State Lodge of the Fraternal Order of Police. Windorff was testifying in support of a bill that would establish a $5,000 minimum bail for criminal defendants previously convicted of bail jumping.

Another proposal under consideration would amend the state constitution to allow judges setting bails to take into consideration factors including criminal histories and amorphous physical or non-physical "serious harm" to the public that would be defined by the Legislature and could be changed by legislative whim. 

Backers of both those proposals and others cite the case of Darrell Brooks, the man allegedly responsible for killing six and injuring others when he ran a vehicle into a crowd at the Waukesha parade. Brooks was out on bond at the time and faced domestic violence and bail-jumping charges. Milwaukee County District Attorney John Chisholm has acknowledged that Brooks should not have been released from the Milwaukee County Jail and that his office erred in seeking a bail of just $1,000.

The stakes behind these bail-tightening proposals are huge, and not just for defendants. Any bill that would make it harder for people to win pretrial release will hit counties hard because counties, not the state, pay for the local jails where those awaiting trial are held. There were 45,454 felony cases and 56,870 misdemeanor cases opened in the state last year. The median number of days it took to close out a case was 161 for misdemeanors and 241 for felonies. None of the bills proposing tougher bail rules would provide assistance to counties to pay for the increased cost and there is a lot of room there for lengthy stays and jail overcrowding if onerous bail restrictions are adopted.  

As for bail jumping, there were a total of 29,791 misdemeanor and felony cases filed in the state last year. Bail jumping is one of the most common charges filed in the state. 

While the tough-on-crime crowd cites Brooks endlessly in their quest to keep the presumed innocent behind bars, not all people accused of bail jumping are Darrell Brooks – far from it. A bail-jumping charge can be (and is) issued for any violation of a condition of a bond, whether or not that violation is a crime itself. A person doesn't even have to be charged with a crime – a mere arrest is enough – to be guilty of bail jumping for violating a bond related to it. 

Case in point: Melodie Taylor was arrested by Platteville police for disorderly conduct and released on $150 bond issued with a condition that she not drink alcohol, according to a brief filed in the Court of Appeals. Some time later, she contacted the police about the bond and was told that if she didn't hear anything in a few days, she could assume that she would not be charged with a crime.

Did you miss our February 9 Zoom talk with Mark Thomsen, Vice-Chair of the Wisconsin Elections Commission? Then listen in now to hear his call for us to be modern-day Paul Reveres regarding voting issues.

A statement by Wisconsin Justice Initiative President Craig Johnson:​

The Legislature this spring has the opportunity to do something rare – pass bipartisan legislation that will help address mental health issues that too often result in vulnerable people ending up in prison. The legislation is 2021 Senate Bill 791. It has the potential to increase the use of treatment and “problem-solving” courts throughout the state by expanding the eligibility criteria for Treatment Alternative and Diversion (TAD) grants. Under current law, TAD grants are limited to programs that offer alcohol and other drug abuse services. SB 791 will expand the grants to include deferral and diversion programs that address mental health. 

It has long been clear to criminal justice practitioners that mental health issues can result in defendants being caught in the net of the criminal justice system with no way out. As Rep. Evan Goyke, one of the bill’s sponsors, noted in his remarks to the Senate Judiciary Committee about the bill, roughly 40% of men and 80% of women in the prison system have mental health issues. Prisons and jails are the wrong places to treat people suffering from mental health problems. Expanding eligibility for TAD grants will allow counties to set up diversion programs to help people accused of crimes get access to much-needed mental health services and hopefully be able to avoid jail or prison. 
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Sen. Andre Jacque, Republican lead sponsor of the bill, noted in his remarks that 97% of TAD graduates stay out of prison after completing services through TAD programs. Jacque also called TAD courts a “critical intervention point of the type that we are always pursuing as policymakers.” 

In the most recent state budget, an additional $2.5 million was added for the TAD programming. This legislation will allow counties to apply to use some of this additional money for new, innovative mental health treatment courts to address an important community need, help make our state safer, and help those afflicted with mental health issues avoid jail and prison. The need is there – while there are 86 TAD-funded programs around the state in 53 counties and three tribes, there are only six mental health courts in the state, according to the Wisconsin Association of Treatment Court Professionals statement to the Judiciary Committee.
 
In remarks to the media following the Waukesha Christmas parade tragedy, the mother of the man who has been charged in the incident noted that he suffered from mental health issues as a juvenile but was cut off from further assistance when he turned 18. While we don’t know what role, if any, mental health issues played in that tragedy, addressing mental health, alcohol and drug abuse and other challenges before they result in damaging criminal behavior will make Wisconsin safer.

​SB 791 passed the Wisconsin Senate on February 15. It now heads to the Assembly, where it should be put on the calendar immediately. The sooner it gets to Governor Evers’ desk, the sooner these programs can start working in communities across the state. 

Last week the Wisconsin Justice Initiative submitted written comments opposing two bills requiring minimum bail for persons with certain prior convictions.

Assembly Bill 838 would set a minimum bail amount of $10,000 for a defendant previously convicted of a felony or violent misdemeanor. Assembly Bill 840 would require bail of at least $5,000 for anyone previously convicted of bail jumping.

The State Assembly’s Committee on Judiciary held a hearing on the bills on Jan. 12. The Committee is chaired by Rep. Ron Tusler (R-Harrison).

Writing on behalf of WJI, Board President Craig Johnson noted how the recent tragic and heartbreaking events in Waukesha County have prompted an examination of bail laws. He then asked the committee members to keep certain principles in mind as the debate on bail policies moves forward. 

“First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release. The problem was that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored,” he wrote.

The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations and for court commissioners and judges who make the ultimate bail decisions. Among the factors that the PSA “scores” are a person’s prior record of convictions, the type of offense they are currently facing, any history of missing court, their history of violence, their age, and their record of prior incarceration.

“Unfortunately, while both bills sound reasonable, they ignore the principle that good bail decisions are not ‘one size fits all,’ but instead are based on individual evidence in specific cases,” Johnson wrote. Individual risk assessments would likely result in cash recommendations for many of the same defendants that would be covered by these bills, but not all, he said.

For example, a person might have a bail jumping conviction for drinking alcohol while out on bail for a misdemeanor case from a dozen years earlier – absolute sobriety is often a condition of release. If they are now charged with another minor offense and are not otherwise a public safety or flight risk, should they be required to post $5,000? The PSA and other risk instruments instead balance the various risk factors in a validated process that is based on examining data from hundreds of thousands of cases across the country. 

Johnson noted that the individual in the Waukesha Christmas parade case should have had high bail because of his elevated score on the PSA. The score resulted from a number of factors, including his history of non-appearance and the fact that he was out on bail already when he was arrested on new charges. “In short, the risk tool worked, but it wasn’t followed. This person should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious offense can’t be safely released if other risk factors are not present,” he wrote. 

Reliance on evidence rather than emotion in making decisions in the criminal justice system should be encouraged because it results in rational decisions driven rather than decisions based on prejudice and fear, Johnson wrote. 

Well-informed bail decisions are made by experienced prosecutors, defense counsel and judges relying on the evidence in each case, Johnson said. “The key is following the evidence,” he said. That means setting appropriate high cash recommendations when a person’s history warrants it. But it also means releasing someone on recognizance, even in some serious cases, if the evidence shows that the person is not high-risk, Johnson said.

“We must make sure that future bail decisions are the result of an evidence-based, validated risk assessment that provides information to justice system professionals to make smart decisions in each case. The evidence points the way, but it gets the right result only if it’s not ignored,” he wrote. 

Johnson asked committee members to also consider the societal costs of unnecessary pretrial detention and creation of a two-tiered justice system – one for the rich and one for the poor. The $5,000 minimum bail in AB 840 would have a very different impact on a poor person working part-time at minimum wage than a rich person with the money easily available, he said.