Bail Reform Debate Proceeds Without Data

In the weeks since Darrell Brooks Jr. drove his car through the Waukesha Christmas Parade on Nov. 21, Wisconsin policymakers have been engaged in a debate about the state’s bail system. Brooks was out of jail for a previous crime on $1,000 — an amount legislators of both parties and Milwaukee District Attorney John Chisholm have said was too low.

Many Republicans have called for Chisholm’s resignation and are arguing for stricter bail laws that would keep more people accused of crimes locked up in jail as they await trial.

“Community safety has to be a factor as our state considers the flight risk of criminals,” Sen. Julian Bradley (R-Franklin) said in a news release announcing a slate of bail-focused bills. “Wisconsin lives are in danger because of the low bail that soft-on-crime judges and DAs are currently setting. This revolving door for criminals must end. We must bring accountability and transparency to the court system to ensure serial criminals don’t continually have the opportunities to put our communities and families in harm’s way.”

Yet legal experts and others say it’s misguided to change the bail system because of one exceptional case and that it shouldn’t be changed without a fuller understanding of what’s happening day-to-day regarding bail in the massive and complex legal system of an entire state.

“One should not look at one incident, however tragic, and draw conclusions,” Ion Meyn, a criminal law professor at UW-Madison says.

Wisconsin’s public court record lives online on the Wisconsin Circuit Court Access website, commonly known as CCAP. The site is built to make it easy to check the status of a case and for lawyers and judges to manage the cases they’re working on.

CCAP is the only public record that shows bail amounts and court appearances, but because of how the site is built it’s hard to collect and analyze that data over a large enough sample size to understand the trends across a big state with independently operating circuit court branches in each county.

The site is not built for using the massive amount of data within the site for research. Specific functions of the website make it nearly impossible to ask questions about the state’s legal system, such as how many people statewide don’t appear for a court date after posting bail? How many people commit a new crime while out on bail? Which judges set the highest bail? The lowest?

“CCAP is an automated case management system administered by the Wisconsin Director of State Courts. CCAP is not a database that was created to be used for data analysis,” Dane County Circuit Court Judge Nicholas McNamara wrote in a report on the county’s bail system. “As a sitting judge, the author’s ability to complete automated queries in CCAP is greater than that available to the general public with free access. But the judicial CCAP application is strictly controlled by CCAP administrators and only permits rather limited queries of a limited number of data fields.”

Some of the most important details when conducting research on the legal system — namely the demographic information of defendants — isn’t even available to judges doing analysis of the system, according to McNamara.

“There’s not great access to the data and there’s highly variable practice,” says Lanny Glinberg, a UW-Madison School of Law professor who runs the school’s prosecution clinic. “It varies from courthouse to courthouse in the state. Bail, like sentencing, is a discretionary decision by courts. As such there’s a degree of variability. In terms of the data, there’s CCAP, and it’s a fairly crude instrument — at least the public-facing side of the website — for doing research. It’s not built for that. It’s the public expression of the court record.”

For nearly two months, Wisconsin politicians have been debating bail reform despite the lack of true understanding about what the bail system looks like for the majority of people facing criminal charges — who are still presumed innocent at the time of a bail decision.

Access to the data within the legal system can help provide a fuller picture of how discretionary decisions such as bail affect the lives of those within the system, according to Jocelyn Simonson, a law professor at Brooklyn School of Law.

“One person of color, especially a Black man committing harm, can be used to make a statement with racial undertones about an entire system based on one incident rather than the entire picture,” Simonson, who has worked on bail reform issues in New York, says.

The recent slate of bills introduced by Bradley and Rep. Chuck Wichgers (R-Muskego) includes a measure that would force the Wisconsin Department of Justice (DOJ) to track and make public some bail related data, but as the bill is written, the data wouldn’t include information such as defendants’ age, race and gender.

Wichgers was unavailable for comment and Bradley did not respond to a request for comment.

Even if the data-focused bill were passed, Republicans are forging ahead with measures to tighten the bail system before they get any answers the data could provide. One bill would mandate that anyone accused of a felony or “violent” misdemeanor automatically have cash bail set at $10,000.

“One of the top issues I hear from police time and time again is that they keep seeing the criminals they arrest back out on the streets just to get arrested again,” Bradley told Wisconsin Right Now. “This epidemic of serial criminality has to stop so that law enforcement can be effective at what we hire them to do — keep our families safe. I back the badge and don’t want to see liberal judges and DAs undoing their hard work.”

Yet legal experts say measures such as a mandated $10,000 bail could have heavy consequences for low-income families of people who are charged with — but not convicted of — crimes.

The bail decision isn’t the first discretionary level of someone’s contact with the legal system. The line between someone being charged with a “violent misdemeanor” such as domestic abuse or battery and being charged with disorderly conduct is slim — often coming down to who the responding police officer and assigned prosecutor are. Meyn says he sees these decisions also often fall along racial lines.

“White guy gets disorderly conduct and a person of color gets strangulation,” Meyn says. “The guy who got disorderly conduct maybe gets an [Alcohol and Other Drug Abuse Program] and goes back to work the next day and life goes on.”

Also, it’s expensive to detain someone pre-trial and if every person accused of a felony or violent misdemeanor has a cash bail set at $10,000, the number of people sitting in county jails across the state will increase. Yet, the Republican bills don’t include additional funding for the county sheriff’s offices that will need to house and feed more inmates.

“Confining someone, whether it’s pretrial or after conviction is still the most expensive form of social control that we’ve got,” Glinberg says. “If you want to do more of that as a matter of policy, it’s going to be more costly. Maybe it’s good policy but we have to grapple with that.”

“Release decisions are not risk-free and the amount of risk we’re willing to tolerate is one for policymakers but they’re not risk-free decisions,” he continues. “Trying to achieve zero risk is going to result in significantly more confinement at great monetary and social cost.”

Also, in other states with more easily accessible data, stricter bail doesn’t necessarily mean less recidivism, better outcomes and safer streets. In fact, it’s often the opposite, according to Meyn and Simonson.

“You have much higher recidivism rates and new crimes that are committed by those who are subject to pretrial detention and those who are not,” Meyn says. “That doesn’t mean you shouldn’t detain anyone, it means you should be really careful about doing that. You create lots of trauma, unemployment, convictions. That all leads to public safety issues and disciplinary problems in schools.”

“I look at this and go from a system point of view, if we went the opposite direction and detained way less people, we’d be a safer society,” he adds.

Bail reform debate proceeds without data following Waukesha tragedy was originally published by the Wisconsin Examiner.