Here & Now

Prosecutors, Defenders Disagree on Bail Amendment Impacts

Frederica Freyberg:

At the bottom of Tuesday’s ballot were two questions posed to voters to amend the state Constitution. The first question on expanding conditions of release passed with more than 66% voting yes. The second question on expanding when cash bail can be imposed also passed with more than 67% voting yes. For some in the court system, this was good news. For others who opposed the measures, they’re warning of the consequences the amendments could have on the accused.

Eric Toney:

It goes back in 2017, where this was first floated to amend the Wisconsin Constitution, really gained more traction after the Waukesha parade massacre with Darrell Brooks.

Marisa Wojcik:

The two sides of the courtroom have come down on opposing sides of the questions that came before Wisconsin voters.

Eric Toney:

Our Wisconsin District Attorneys Association has supported this constitutional amendment and we are very excited that the voters of Wisconsin joined us in overwhelmingly voting to give more factors for our judges to look at when setting cash bail as well as some of the non-monetary bail conditions, so it should have a net effect of making Wisconsin safer, but also ensuring that our judges are all setting bail with the same rules.

Marisa Wojcik:

That opinion contrasts from state public defenders.

Adam Plotkin:

We did speak against the amendments when they were making their way through the legislative process. Really our primary concern with them is the expanded role that money would play in the bail system under the amendment, because fundamentally, cash is not a guarantee of public safety and these are going to have significant impact on the number of individuals who are in custody while still presumed innocent.

Marisa Wojcik:

Overall, the amendments passed will expand the criteria judges can consider when setting pretrial release conditions.

Eric Toney:

When you look at what cash bail was for prior to this amendment, the only reason in the Wisconsin Constitution that allowed for cash bail was to assure a defendant’s appearance in court and now it says that we look at the dangerousness of the defendant. We look at the prior criminal record of the accused. We look at the defendant appearing in court. We also look at protecting witnesses from serious harm. So there are a number of additional factors that a judge is now able to look at to determine if cash bail is appropriate.

Adam Plotkin:

By expanding the number of considerations, you take away the ability to argue that this person will show up in court in the future and that limits the ability to argue against cash bail. The use of cash for SPD clients who are by definition poor, even low cash bail amounts of $250, $500, can be enough to keep them in jail. And so when we increase the role of cash and the number of situations in cases where it’s used, we’re going to see an increase in the number of people who can’t afford to pay that cash bail and who are held in custody.

Eric Toney:

I’ve had judges that will ask somebody, how much money do you have in your pocket right now? $10. Okay. That’s what we’re going to order for cash. There are times where we’ll make a request for $25, $50, maybe $100, where it’s something that we believe a defendant might be able to post, but we also understand that could be a significant amount of money for that particular defendant, depending on their circumstances, but it doesn’t require a judge to order cash bail and there are already protections in our legal system for defendants who have cash bail ordered. It’s also those non-monetary conditions that the — one of the amendments addressed to look at serious harm, not just what was previously serious bodily harm. So there are other factors that judges now get to look at when — if they’re not going to order cash, now the judges have an expanded ability to look at the harm that might be cause to protect from economic, emotional, other type of potential harm that could be caused.

Adam Plotkin:

The list of violent offenses is beyond what I think most people would consider to be violent. It includes crimes such as disorderly conduct, if you have a knife or other low-level offenses that right now are not even often charged. The most important thing to understand is keeping an eye on the impact on public safety. As I said, the research and evidence suggests that we won’t see a decrease in crime rates as a result of this. In fact, there may be a slight uptick. That’s also why the research shows that a better model is one that is based on risk assessment and not the role of cash bail. There’s going to be a realization in the very near future that this has significant impact on cost to counties in terms of increased jail population.

Eric Toney:

Probably it may be hard to see exactly how this plays out in different counties and you might be able to look at a jail population to see if a county is experiencing a higher number of defendants pretrial in jail. That is a number that certainly can be looked at, but you can’t look at that in isolation because sometimes there can be an uptick in crime that could be responsible for that or it could be that cases are taking longer to resolve because of other issues.

Adam Plotkin:

Now we have to wait and see how this has a practical impact day to day, county-by-county, judge-by-judge, and try and figure out what some of those practical impacts are. And then that other question to ask is, you know, when the county boards are considering the budgets each summer and fall when those costs go up and the taxpayers are asked to shoulder that burden, is this how you want your tax dollars being spent, is it having the intended effect?