Here & Now

Public Defenders and Wisconsin's Bail System

Frederica Freyberg:

Opponents of the amendment to change the bail system in Wisconsin worry it will lead to many more people held in jail prior to trial. People who are presumed innocent and do not, in fact, pose a safety risk. Among them Wisconsin state public defender Kelli Thompson. She joins us now. Thank you very much for being here.

Kelli Thompson:

Thank you very much for having me.

Frederica Freyberg:

Why will this lead to many more people jailed pretrial?

Kelli Thompson:

It likely will lead to additional people being held pretrial because cash bail does not equate to risk. You and myself could be charged with the same crime and be provided a cash bail by the court or by the commissioner. One can pay. One cannot pay. And that doesn’t necessarily mean that the person that can pay is less risky. We have individuals in our criminal justice system, in our jails right now, presumed innocent. And they just don’t have the ability to pay the cash bail that has been set in their particular case.

Frederica Freyberg:

In terms of the amendment, why is it wrong to consider the seriousness of the crime, past criminal history, and protection of the community when setting bail?

Kelli Thompson:

It’s not that it’s wrong, it’s just are we looking at the correct factors that we should be to keep our community safe. And still stay true to what I think is extraordinarily important to all of us – that presumption of innocence and our liberty interest. We’re taking away someone’s liberty interest when we hold them in jail presumed innocent. Part of what happens, when we keep someone in custody, prior to a conviction in a case, we’re taking away their housing security, we’re taking away their children, we’re taking away their ability to work, to be employed and we’re doing that again on the assumption that they have committed a crime. They’re still just charged. And again that presumption of innocence is so, so very critical. What we see daily, and in real life is that a number of individuals are sitting that are too poor to pay a cash bail, even sometimes a low cash bail, and so they sit waiting for their day in court. We know nationally — this is not a new discussion. In fact, we have had discussions with other legislators, with senators, with representatives, Senator Wanggaard has been on the forefront of this issue for years. We’re looking at different states, different communities, different counties on what’s working and cash bail is not the direction that others are going or expanding cash bail.

Frederica Freyberg:

Would you like to do away with cash bail all together?

Kelli Thompson:

I would. But I know that’s not what is going to happen. And that’s not what I am asking for. I know that cash bail does play a role. That people feel that does hold basically a stick or a carrot to get people to come back to court. But that should be used in such limited situations. Again, I’m going back to most people should be out of custody. They’re presumed innocent. There’s a group of individuals may need something more to continue them in the community. And that can be no contact order. No violent contact order. That could be some type of services. That could be electronic monitoring. And then there’s a group of individuals that we say, hey, you need something more, and that could be the cash bail system we use. But, again, cash bail does not equate to public safety. When we go before a commissioner, before a judge to make a determination on bail, we have some information but these hearings go very, very quickly, and we don’t often have a lot of information on these individuals. And what we’re doing is we’re saying somehow, especially to poor people, you are more risky so we’re going to keep you in custody. And I don’t think that’s the system we should be striving to have in Wisconsin.

Frederica Freyberg:

There are other models of which you spoke that people are discussing including the federal model — federal prevention detention. How is that better people think than what we are looking at?

Kelli Thompson:

It doesn’t put two people similar situated, one being poor though, in custody while someone else who can post that cash bail out of custody. Preventive detention is used in a very limited number of cases. But it does, what I think individuals are looking at, we have perhaps a very high risk group of individuals who have been charged with very serious cases, and a commissioner or a judge can determine that there is — you should not be released. Again it’s a very limited number of cases. But they do have that ability. With a lot of parameters. We have to respect due process and make sure that people can have hearings and that there could be motions so that we can go before a judges and say, hey, we have new information this person should be released. But the federal system does that. A number of states do that. We actually have it in our constitution, just the way it is now is unworkable. But is that somewhere we should be focusing some of our attention if public safety is one of our primary concerns with the individuals. Again what we’re doing here is by expanding that cash bail, is ultimately keeping who can’t afford it in custody, and away from their communities and most importantly away from their families.

Frederica Freyberg:

We leave it there. Thank you very much, Kelli Thompson, and thanks for your time.

Kelli Thompson:

Thank you very much. Thanks for having me.

Frederica Freyberg:

The constitutional amendment would allow judges to deny bail all together based on prior criminal history.