Evers signs bail bill likely to keep more poor people incarcerated before trial

By Gretchen Schuldt

A bill implementing a constitutional amendment allowing judges to consider more factors in deciding whether to hold people accused of crimes in jail on cash bail was signed into law last week by Gov. Evers.

The amendment to the state constitution, approved by voters last week, and the implementation law likely will result in more presumed-innocent poor people being held in jail, while wealthier people are free while their cases are pending.

The implementation bill was approved, 67-30, in the Assembly and 21-10 in the Senate. A full tally of the votes is shown in the chart at the bottom of this post.

WJI President Craig Johnson noted the probable outcome during his public testimony on the bail amendment. "We cannot have a two-tiered justice system – one for the rich, and one for the rest of us," he said.

​And Adam Plotkin, legislative liaison for the State Public Defender's Office, warned last month that the implementation bill defines a key term so broadly it encompasses "nearly all possible situations." 

The bill would define as "violent crimes" offenses such as criminal damage to property, criminal trespassing, disorderly conduct, or violation of an injunction, Plotkin said.

Despite those cautions and others like them, Evers signed the bill last week after voters approved the state constitution amendment relaxing the standards for cash bail. The amendment did not define key terms; the bills Evers signed did that.

“The people of Wisconsin approved a companion constitutional amendment to change our state’s bail policies, and while I’m signing this bill today consistent with the will of the people, I also want to be clear that these changes alone will not solve the challenges facing our justice system,” he said.

Evers called on the Legislature to "join me in supporting evidence-based solutions that respect and protect victims and survivors, reduce recidivism, bolster our justice system workforce, and ensure our communities have the resources they need to invest in public safety services, including police, fire, and EMS.”  

Previously, cash bail was to be set only to ensure defendants in criminal cases, still presumed innocent, showed up in court. Now, under the constitutional amendment, it can be set any time a person is accused of a violent crime as set by the legislature, taking into account

• whether the accused has a previous conviction for a violent crime;
• the need to protect the community from serious harm as defined by the Legislature;
• the probability the accused will fail to appear in court;
• the need to prevent the intimidation of witnesses; and
• the potential affirmative defenses of the accused. ​​

Under the bill, "serious harm" is defined as "1) personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm attendant to the personal physical pain or injury, illness, or death; 2) damage to property over $2,500 in value; or 3) economic loss over $2,500 in value," according to the Legislative Reference Bureau. 

The definition of "violent crime" is defined only by statute number in the bill. The LRB said it includes "crimes such as homicide, aggravated and special circumstances battery, mayhem, sexual assault, false imprisonment, human trafficking, taking of hostages, kidnapping, stalking, disarming a police officer, arson, felony burglary, and carjacking; crimes to which a domestic abuse or dangerous weapon penalty enhancer may be applied; the violation of a domestic abuse, child abuse, or harassment injunction; or the solicitation, conspiracy, or attempt to commit a Class A felony."

Class A felonies are the most serious type.

An amendment adopted by the Legislature added more crimes to the list: mutilating or hiding a corpse; assisting suicide; misdemeanor battery; misdemeanor battery to an unborn child; intentionally causing bodily harm to an elder person; recklessly causing bodily harm or great bodily harm to an elder person;  injury by negligent handling of dangerous weapons, explosives, or fire; abuse of residents of penal facilities; human trafficking; criminal gang member solicitation; burglary (certain circumstances); reckless physical abuse of a child; repeated acts of physical abuse against the same child (certain circumstances); or intentionally taking any vehicle from owner by use or threat of force.

The amendment also removed a few crimes from the list of those considered "violent." They include mail fraud, wire fraud against a financial institution, and extortion against a financial institution. Allegations of those crimes, however, would still fall under the new bail standards if economic losses were more than $2,500.