Sept. 13, 2019 - A recent three-part article in the Wisconsin Rapids Tribune delves into the issue of cash bail and the shortage of criminal defenders, and examines how these two issues intersect to produce a growing concern for many involved in the criminal justice system. You can read part one, part two, and part three here.
The issue of cash bail is examined first. Many people in Wisconsin accused of low-level crimes can’t afford cash bail or a private attorney, and remain in jail while awaiting trial. When combined with the well-documented shortage of criminal defenders (particularly in rural areas of the state), this can sometimes means that during the wait for a public defender or private bar attorney to be appointed, the defendant can lose employment, housing, and the ability to continue supporting their family. In many cases, the disruption and negative impacts to the lives of defendants and their families amounts to a punishment that doesn’t fit the crime. Wisconsin is hardly alone when it comes to the attention being brought to these discrepancies in the criminal justice system. A national movement is emerging to move policies away from cash bail and towards evidence-based decision making (EBDM). Several counties in Wisconsin have been early adopters of this model.
“In most counties, the decisions that lead to cash bail aren't based on evidence, said Laura Yarie, who coordinates jail alternatives for Marathon County.” Eau Claire and Milwaukee counties were the first two to pilot the new EBDM model. Marathon, Outagamie, Chippewa, La Crosse, Rock and Waukesha counties have also joined the initiative.
The counties hope to develop a standardized system that can be adopted state-wide and would replace cash bail in many cases, with the goals of limiting the negative impacts of pre-trial jailing on some defendants and their families lives while still protecting public safety. In this instance, an arrested defendant would initially be held in jail as they are under the current procedures, but then each defendant's case and background would be given a score based on factors such as their prior records and the severity of the crimes. The judge would receive information on their likelihood to re-offend or be a danger to the public, and based on this evidence, order electronic monitoring, day reporting or other precautions — depending on the risk defendants pose to the public. The most serious offenders would not be released.
“The tool is not meant to tell judges what to do, but to give them an evidence-based way of making decisions on whether to release a defendant and what precautions to take, Yarie said.”
In June of 2018, the State Bar of Wisconsin adopted an official policy position that supports reforming bail and pretrial detention laws so as to move away from the use of cash bail and toward the use of a validated risk-assessment instrument as a basis for pretrial detention decisions (State Bar Policy Positions 2019) The State Bar supports the EBDM model used by several Wisconsin counties as a viable alternative to cash bail. We hope to spread education and awareness of EBDM practices currently existing in Wisconsin in the hopes that more counties throughout the state will see the benefits of such a model. If you are interested in learning more, reach out to Grassroots Outreach Coordinator Devin Martin at dmartin@wisbar.org or 608-250-6145.
