A proposed constitutional amendment approved last week by the state Legislature to change the cash bail system in Wisconsin for those accused of violent crimes is spawning concerns that it will penalize the poor.
The issue: Will suspects with financial means be released on bail while those with low income accused of the same crimes still languish in jail.
The Wisconsin Assembly approved a constitutional amendment Thursday, to change the cash bail system in Wisconsin by giving judges more flexibility in determining bail amounts for accused violent criminals. Because the state Senate approved the measure days earlier, the fate of the measure will now go before Wisconsin voters during the April 4 election.
Among others, the proposal troubles Wendel Hruska, executive director of Project RETURN (Returning Ex-incarcerated people To Urban Realities and Neighborhoods), an organization that supports men and women returning to the community from incarceration. He’s had clients who have been detained for not being able to pay bails as minimal as $100. If passed by voters, the constitutional amendment still threatens to penalize those who are poor, Hruska said.
“By passing this legislation, more individuals will be forced to be incarcerated while they wait for their day before the judge,” Hruska said. “This is an overly punitive action that will have an unfair impact on those living in poverty in our community.”
The proposal would allow judges more flexibility in determining higher cash bail. This is being done to “assure the appearance of the accused in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses,” according to text from the proposed resolution.
Although judges are free to consider these other factors, they can only use bail as a mechanism to try to ensure an appearance in court.
The proposal would remove that mechanism as the only deciding factor for cash bail and change the language from “serious bodily harm” to “serious harm.” The proposal is co-authored by state Sen. Van Wanggaard, R-Racine, and state Rep. Cindi Duchow, R-Town of Delafield, and supported by Democratic state Rep. Sylvia Ortiz-Velez of Milwaukee.
Unlike many other states, bail bonds, in which an outside agency pledges money or property to ensure a defendant’s presence in court, is prohibited in Wisconsin, though defendants are sometimes released on signature bond without having to hand over money.
Ortiz-Velez said that while some of her colleagues may be unhappy that she’s supporting the proposal, doing nothing about the current cash bail system would be a mistake.
“This is what’s on the table, and it makes sense that a judge looks at someone’s violent past, and these are convictions,” she said. “I think it sends the wrong message when people get out for really violent crimes for $250 bucks and then they get out and put a knife to someone’s back.”
Ortiz-Velez said allowing violent suspects out on minimal bail, which the current system allows, also sends the wrong message to victims.
“Will they call the police again?” said Ortiz-Velez, adding that constituents with whom she’s spoken also support the measure.
Although she has concerns about the amendment, she said the need to protect the public overrides them. She added that the new rules would only pertain to violent crimes.
State Democratic Rep. Evan Goyke of Milwaukee, who is against the measure, agreed that the current system is flawed. But, he said, the proposal is even more flawed because it discriminates against individuals with less income.
Money vs public safety?
“Whenever we rely on money as the way someone is held or let out,” then “it is about access to money and not about public safety,” he said. “I prefer a system that fixes Wisconsin’s pretrial detention system.”
Goyke said protecting the public would be better accomplished by removing the option to post a cash bail if someone is deemed that much of a danger, similar to the federal system.
Supporters of the bill have cited Darrell Brooks, who was sentenced to life in prison in November for the Waukesha Christmas parade attack but was out on bail when he committed that crime. Goyke said there are a number of additional examples of individuals who posted high bail amounts who also committed crimes upon release.
He used the example of Mark Benson, who was released on $500,000 bail while awaiting trial in Waukesha for multiple counts of homicide by negligent use of a vehicle. While out on bail, he was arrested for purchasing prescription drugs via a delivery service while also having several guns and 20,000 rounds of ammunition in his house.
The purchase of prescription drugs from more than one pharmacy and possession of firearms both violated the conditions of his bail. The subsequent crime occurred in 2009.
Goyke also said whether someone is held in jail or released on bail can impact outcomes.
There is ample research to suggest that the outcome for a person who walks into a courtroom in a coat and tie is different than for a person in an orange jump suit, said Goyke, a former public defender. “I can attest to that,” he said.
The ACLU of Wisconsin submitted testimony to the Senate Committee on Judiciary and Public Safety and the Assembly Committee on Judiciary in January, citing studies that also showed poorer outcomes for those who are held during pretrial.
“The inability to pay cash bail hurts the very things that help someone charged with an offense succeed: employment, stable housing, and strong family and community connections. On top of the risk of job loss, eviction, and the impact on child custody and parental rights, people incarcerated pre-trial can find themselves under a mountain of system-imposed debt,” read the ACLU’s letter of testimony.
Shanyeill McCloud is the founder of Clean Slate Milwaukee, an organization that provides expungement services for adults convicted of misdemeanors or who have nonviolent felony convictions. She said she sees both sides of the argument.
She knows that dangerous individuals such as Brooks need to be kept off the streets. But, she said, the system being proposed would still lead to unfair treatment of those in poverty.
“It’s always been that way,” she said. “Jail is only for poor people really because when people have the money, they don’t sit in jail.”