Beyond bail

(First published in the October 3, 2019 issue of City Pages)

The poor stay in jail while the rich go free; but the state is starting to think differently about the cash bail system

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On a summer night in 2017, a police officer conducting a drunken-driving sweep in northeast Wisconsin tried to pull over an SUV after a check showed the owner had a revoked driver’s license. The driver fled. As the officer gave chase, siren blaring, the vehicle blew through multiple stop signs in a residential area.

The officer stopped the pursuit for public safety reasons. When police found the vehicle parked later, the driver was nowhere to be found.

The vehicle owner told the Wisconsin Center for Investigative Journalism that he was not driving the car that day; his ex-girlfriend had been using it for months. He asked that his identity be shielded in this story — “David” is a pseudonym — because although the case has been dismissed, prosecutors could still refile charges against him.

When David went to retrieve his SUV from the impound lot, he was arrested for the felony charge of eluding police. The next day, the court commissioner set his bail at $5,000. David asked the commissioner to set an amount he could afford, closer to $1,500, but the commissioner declined.

So, David sat in jail for 84 days waiting for his trial — even though he had an alibi and witnesses to swear that he was not driving the SUV the night of the chase.

Eventually, David’s public defenders got the case dismissed.

But he can never get back the nearly three months he served in jail for a crime he said he did not commit. During that time, David lost his job, his car, his apartment and visitation time with his now-12-year-old son. While David was in jail, his son’s mother filed for child support, which David could not pay. After he was released, his 50-50 custody changed to one weekend a month.

Although David got his job back, he had to dip into his retirement savings to pay off the loan still owed on the SUV that police seized. The impound fees, which had accumulated while he was jailed, eventually totaled more than the vehicle was worth.

“I thought you were supposed to be innocent until proven guilty, not guilty and then prove you’re innocent,” David says.

David’s story highlights a problem with the pretrial incarceration — it can potentially be a pay to play system. Defendants with high financial means might easily pay a bond costing thousands, while for another person, a $200 cash bail might be enough to keep them locked up. Who remains behind bars, then, has more to do with how much money they have than the severity of the crime.

But a pilot program in seven Wisconsin counties, including Marathon County, aims to change that.

Jails swell with pretrial defendants

Pretrial incarceration such as David’s is common throughout the United States. About half a million U.S. residents are held in jail on any given day awaiting trial — a trend that has grown sharply since the 1980s, according to the Prison Policy Initiative, which researches and advocates against mass incarceration.

Some defendants spend longer in jail awaiting trial than their sentences ultimately call for. In Louisiana, the problem is so acute that some indigent defendants — who under the law are presumed innocent — can wait four years or more for their day in court.

Studies show incarceration for inability to pay bail can cascade into a chain of events that jeopardizes the lives of those charged, their families, and society at large.

These problems, and a raft of lawsuits, have prompted numerous states, including Wisconsin, to question whether cash bail for minor offenses is cost-effective — or even constitutional.

According to a 1987 U.S. Supreme Court case, liberty is supposed to be “the norm,” and detention before trial “the carefully limited exception.” Today, for many of those too poor to post bail, detention is the norm.

At the same time, rich defendants can post high cash bails for even the most egregious charges such as homicide and rape, allowing these potentially dangerous defendants back into the community.

The Wisconsin Constitution states that cash bail can be used only as a means of making sure the accused appears for the next court hearing — meaning judges are not supposed to consider public safety when making decisions about bail.

Later this month, a Wisconsin legislative study committee will consider various proposals to change the system. They include allowing or requiring judges to consider public safety when deciding whether to let a defendant out of jail pretrial, and sharply reducing or eliminating cash bonds? as a condition of release.

What that looks like in Marathon County

A recent study conducted of the Marathon County Jail showed 31% of inmates were in jail awaiting trial, and 24% were already sentenced. Another 35% were on hold, either pre- or post-trial.

That was just one finding in the 2017 report conducted by the National Institute of Corrections. The county commissioned the report because the jail had been overcrowded for some time, as cases added up in the District Attorney’s office and as public defenders remained in short supply. The jail population has since decreased, thanks to some changes in how criminal justice is administered in the county. A social worker has been assigned to the jail, and all officers in the county have been trained in how to handle mental illness. A unit comprised of two mental health care workers and two officers called the Crisis Assessment Response Team responds to mental health cases when possible, steering them toward help and de-escalating situations before they lead to activity that could land someone in jail. After peaking at 400 inmates per day, the population has declined to roughly 350 per day.

At the request of City Pages, Deputy Jail Administrator Paul Mergendahl put together a snapshot of the current situation in the jail. Of the 358 inmates in Marathon County Jail (including those housed out of county), those newly arrested made up 37% of the jail’s population. Those serving their sentences, following a trial, made up 18.2% of that population. The highest percentage of inmates were in jail because of probation or parole violations. They made up 147 of the 358 inmates in the jail.

In that snapshot, 16 were being held on cash bonds of $500 or less. Three of them — all held on disorderly conduct charges — were being held on only $150 in cash. The other cases in which bond was $500 or less were held in custody on charges ranging from assaulting an officer, to possession of methamphetamine, to simple assault.

Sheriff Scott Parks told City Pages that as an officer, he leans toward higher, not lower, cash bonds. Sometimes, for good reason – those who commit dangerous crimes need to be locked up for the public’s safety, and to ensure they show up to court.

But Parks acknowledge that it doesn’t always work that way with cash bonds. Jeremiah Button, who was recently apprehended living in a shack near the Marathon County Solid Waste Department, had paid a $25,000 cash bond. Yet, he absconded from his 2014 court case for sexual assault of a child prior to the trial.

A more stark illustration of this happened in Portage County in 2014. A man who committed chilling assault crimes had his bail paid and he left jail. Eventually, he broke into the home of a detective with the intention of burning the place down. The detective and his fiancé returned home and the detective got in a scuffle with the man. After the man hit the detective numerous times with a frying pan, the detective shot and killed him. The detective was found to have acted in self-defense. City Pages could not obtain his bond amount because the man’s file was deleted from court records after he died.

Pretrial changes underway in Wisconsin, Marathon County

While the study committee is mulling statewide changes, seven Wisconsin counties — Chippewa, Eau Claire, La Crosse, Marathon, Outagamie, Rock and Waukesha — are implementing new pretrial strategies as part of a pilot program.

Constance Kostelac, director of the state Department of Justice’s Bureau of Justice Information and Analysis, says these counties have implemented, or are in the process of implementing, mechanisms to help ensure defendants meet terms of their release and show up in court, as well as programs that divert defendants from jail altogether.

The counties will also pilot the Public Safety Assessment, or PSA, an algorithm that helps judges identify low-risk defendants so they can be released to go home — without paying cash bail — pretrial. This tool, called a risk assessment, is already being used in Milwaukee and Dane counties.

“We are moving into this trying to create a systematic approach to pretrial across all these different jurisdictions,” says Tiana Glenna, coordinator for Eau Claire County’s Criminal Justice Collaborating Council.

In Marathon County, work is already underway on implementing the PSA, and the county recently hired someone to perform those assessments, says Deputy County Administrator Lance Leonhard. The program, when operational, will help judges assess the likelihood a defendant will make his or her court appearances or commit further crimes while out on bond, says Leonhard, a former Marathon County assistant district attorney.

If the assessment shows a defendant has a low risk of offending, for example, they might simply send text messages reminding the defendant to show up in court. With a high-risk defendant, they might still be released, but requirements might be more restrictive, including a GPS monitor, weekly face-to-face meetings and drug screenings to ensure they comply with court conditions, Leonhard says.

Studies: Cash bail makes things worse

Researchers have found that spending even a few days in jail awaiting trial correlates with defendants committing more crimes later on and pleading guilty even if they are innocent. It can also exacerbate poverty and cause defendants to lose child custody or employment. Holding them in jail also can be counterproductive; research shows defendants detained pretrial for even brief stays are less likely to show up for court than defendants not detained.

As more people are held due to inability to pay bail, the overall cost to taxpayers has ballooned, placing a financial burden on states, communities and their taxpayers.

The United States spends $14 billion annually on incarceration of approximately 450,000 inmates awaiting trial on any given day — or 63 percent of the country’s jailed population, according to a 2017 report by the Pretrial Justice Institute, which advocates for “safe, fair and effective” pretrial justice practices.

Such concerns led California to make the controversial decision in August 2018 to eliminate cash bail altogether, a move that the bail bond industry blocked pending a 2020 statewide referendum. In the new system, judges would detain defendants pretrial only if they are deemed dangerous or likely to skip court.

Policymakers and judges across the country, including in New York, New Jersey, Georgia, Texas, Maryland and Ohio, have joined the chorus pushing to eliminate cash bail for minor offenses or set bail based on defendants’ ability to pay.

Bail: Is it unconstitutional?


Coburn Dukehart

Now-retired Milwaukee County Circuit Judge Jeffrey Kremers says back before the county changed its bail policies, many defendants could not afford even small cash bails.

Increasingly, courts across the country have found use of cash bail unconstitutional.

In January 2018, a California appeals court ruled that failing to take into account a defendant’s ability to pay was unconstitutional. The case involved a man who was held on $350,000 bail for nearly a year after allegedly robbing another resident of his apartment building of a few dollars in cash and a bottle of cologne.

New York State Supreme Court Justice Maria G. Rosa made a similar point when overturning a ruling in a pretrial incarceration case.

“Discrimination on any basis, including on the basis of how much money someone has, is a violation of the equal protection clauses and due process clauses of the New York State and United States Constitutions,” Rosa wrote. “Freedom should not depend on an individual’s economic status.”

Mississippi had 3,700 defendants who were in jail awaiting trial at least 90 consecutive days, including 875 who waited for over a year, according to a 2018 study by the MacArthur Justice Center at the University of Mississippi School of Law. The center, a criminal justice watchdog, sued local governments in Mississippi over the detention of poor people, alleging they were running “debtors’ prisons.”

“Because it has been imposed in every criminal case in Mississippi for decades, it is hard to convince people to end the practice of money bail,” center director Cliff Johnson says. “The fact remains, however, that no one should have to pay for their freedom simply because they have been accused of a crime.”

Now-retired Milwaukee County Circuit Judge Jeffrey Kremers says he has seen that disparity play out in Wisconsin’s largest county. Back before the county changed its bail policies, many defendants could not afford even small cash bails.

Says Kremers: “$150, $200 and people are sitting in our jail. You can’t tell me those people are dangerous. If you thought they were dangerous, you wouldn’t set bail at $200, right? And they couldn’t get out.”

By Emily Hamer and Sheila Cohen

Wisconsin Center for Investigative Journalism,

with local reporting by B.C. Kowalski