​WJI opposes proposed bills changing bail

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. 

"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.” --WJI President Craig Johnson

The State Bar of Wisconsin, though taking no position on the bills at this time, submitted its concerns about the movement away from evidence-based determinations. “After evaluating many studies and reviewing possible solutions, our Board of Governors has concluded that continuing to use cash bail alone as the basis for public safety is contrary to the State Bar’s philosophy. Rather, courts should use validated risk-assessment tools or ‘evidence-based decision making’ to determine the appropriate mechanism to both guarantee a return for court proceedings and protect the public from further harm,” wrote Bar President Cheryl Daniels.

The Wisconsin State Public Defender’s Office pointed to the fundamental principle that those accused of committing crimes are presumed innocent until proved guilty and that detention prior to trial should be the exception rather than the norm. The Defender's Office also suggested that the provisions will violate the state constitution, which allows cash bail solely to ensure that an individual will appear for future court hearings.

Regarding AB 840, the Defender’s Office raised concerns relating to the frequency of bail jumping convictions, as bail jumping can be charged for violation of any condition of pretrial release. “Given that bail jumping is usually one of the top three charges issued in Wisconsin, AB 840 becomes an almost universal minimum bail amount for anyone who may have been convicted of bail jumping years earlier for violating a condition of release,” said the Defender’s Office.

The Wisconsin Association of Criminal Defense Lawyers (WACDL) echoed that AB 838 is unconstitutional, as the state constitution allows monetary conditions of release only to assure appearance in court. The bill is also fiscally irresponsible, wrote Anthony Jurek for WACDL. “[T]here are not currently enough jails to house the sort of populations this bill would occasion,” he said.

The main authors of the bills, Rep. Chuck Wichgers (R-Muskego) and Sen. Julian Bradley (R-Franklin), submitted comments in support. Wichgers suggested that the proposed bail reforms are necessary because Gov. Tony Evers has refused to hold Milwaukee County District attorney John Chisholm accountable following the tragedy in Waukesha. Bradley wrote that the package of bills will begin to fix the problem of judges and district attorneys “giving out lax bail” and will rebuild public trust in Wisconsin’s criminal justice system. Bradley added that the Wisconsin Constitution should also be amended to prevent violent criminals from being released.
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On Thursday, Jan. 13, Bradley introduced similar proposals in the Senate, Senate Bills 856 and 858. Both bills were referred to the Senate’s Committee on Judiciary and Public Safety.