by Kevin Bliss
Wisconsin’s constitution establishes that cash bail only be set as a means of ensuring defendants’ appearance at court hearings, but opponents say the system only ensures that the poor remain incarcerated while the rich enjoy freedom.
Defendants who cannot afford bail can remain behind bars for days, weeks, or even years. This exacerbates poverty and can disrupt their job security or child custody.
Now, a Wisconsin legislative committee is exploring whether this system is cost effective and whether there should be modifications, such as “deciding whether to let a defendant out of jail pretrial, and sharply reducing or eliminating cash as a condition of release,” according to wpr.org.
The U.S. spends $14 billion annually on the half-million pretrial detainees found in the nation’s jails on any given day, according to a 2017 study by the Pretrial Justice Institute. The Vera Institute of Justice stated that the national average is 209 detainees per 100,000 people.
Wisconsin is ranked 18th lowest in the nation, with 158.4 detainees per 100,000 people, but a large percentage cannot afford bail. “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,’” according to wpr.org.
Is this system constitutional? A California appeals court ruled in a 2018 case that failing to take into consideration a detainee’s ability to pay bail is unconstitutional.
New York Supreme Court Justice Maria G. Rosa wrote, “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 the United States Constitutions. Freedom should not depend on an individual’s economic status.”
Moreover, MacArthur Justice Center director Cliff Johnson said, “The fact remains ... that no one should have to pay for their freedom simply because they have been accused of a crime.”
Researchers cite a correlation between pretrial detention and an increase in the commission of future crimes, as well as detainees pleading guilty to crimes they did not commit. The Arnold Foundation reported in 2013 that Kentucky detainees received prison sentences that were three times longer than those who posted bail, and they were four times more likely to be convicted. In addition, detainees who were considered a low risk for not appearing at court were 40 percent more likely than those not detained to commit a new crime once released. Reform advocates believe pretrial detention actually leads to more criminality, not less.
Retired Milwaukee County Circuit Court Judge Jeffrey Kremers advocates for a law that would detain only defendants who pose a risk of flight or to public safety; all others would be released, which would eliminate a defendant’s ability to pay from consideration.
Dane County Judge McNamara, who supports Kremers’ proposal, stated, “Eventually, I do think there will come a time when cash bail is not being used. I mean, that is the trend, and I think that that’s probably a positive goal. But people must understand that with that will be preventative detention.... There will be some people — even though they are still innocent — there’s enough public safety concern to hold them in custody.”
Funds aimed at assisting pretrial detainees have taken off. The Bronx Freedom Fund began in New York in 2007. It was co-founded by New York public defender Robin Steinberg, who then began her own organization in 2018 titled The Bail Project. Steinberg’s plan with The Bail Project was to assist 160,000 indigent defendants in five years within certain designated communities between New York and California
“If we get really, really lucky, I would hope reforms would put us out of business within the next five years, but it’s going to take a lot longer,” Bail Project spokesperson Camilo Ramirez said.
Wisconsin’s Dane County has the Free the 350 Bail Fund serving African-Americans in the county. Started in 2017 by Freedom Inc. Justice Director Jessica Williams, the fund has assisted in the bail of nine people last year and paid the fines of one woman facing a year in the Racine County Jail. “Just because a person’s committed a crime doesn’t mean that they’re a danger to the public,” said Williams.
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