Advocates Push for Evidence-Based Bail Laws

Rep. Ryan Clancy (D-Milwaukee) discusses the issues around bail with other elected officials, criminal justice advocates, and others. Photo by Isiah Holmes/Wisconsin Examiner.

Elected officials and criminal justice advocates gathered in the Assembly parlor on Thursday, pushing back against efforts to create more stringent bail laws. Republican lawmakers have kept a fire burning under the issue of cash bail for over 16 months. An April 4 ballot measure could determine whether the Wisconsin Constitution will be changed to expand the array of factors judges consider when setting bail. During a press conference on Thursday, criminal justice advocates and allied elected officials called for evidence-based strategies to guide pretrial detention and release.

“If we want to have a serious conversation about public safety, we need a solution which looks at both the data and at the lived experience of people and families impacted by pre-trial detention,” said Rep. Ryan Clancy (D-Milwaukee). “Opposing the cash bail expansion ballot questions is the first step; the next step is replacing that failed system with one that brings us closer to justice.” The bills he and his colleagues propose will create “the gold standard of pre-trial detention,” he declared. A coalition of 18 community organizations and stakeholders has formed to support the legislative package.

The first bill would help elevate risk as the sole factor shaping an individual’s time spent in pretrial detention. The bill promotes the use and development of risk assessment tools. Under the measure, defense attorneys would have the ability to appeal a judgment for pre-trial detention. The use of cash bail is also restricted under the bill as only a means to make sure defendants return to trial. People who are held in jail under pretrial detention have not been convicted of a crime. Under U.S. law they are still innocent until proven guilty.

A companion bill pushes for text messaging services for anyone expected for a hearing or trial, helps fund the risk assessment tool and the collection of data used to improve it and offers  transportation and child care assistance for those experiencing pre-trial detention. Both bills are still being finalized.

“Wisconsin has a mass incarceration problem,” said Sen. Chris Larson (D-Milwaukee) during the press conference. “We have spent almost a billion and a half dollars every year on the prison system alone, and millions more on our county jails, where people who have not yet been convicted of a crime now make up the majority of the 13,000 people in these jails at any given time. The attempted constitutional amendment would only make this problem worse. Instead we should be doing what actually works: risk-based assessments.”

A battle over the bail system

Republican lawmakers have criticized both Milwaukee and Dane County for not detaining people in jail long enough. One of the most high-profile examples they point to is Darrell Brooks. In 2021, while out on bail for domestic violence charges, Brooks drove a vehicle through the Waukesha Christmas Parade, killing six people and wounding many more. Brooks was sentenced to multiple life sentences the following year in a Waukesha County court.

Several factors contributed to Brooks’ release on bail on the previous charges. From the COVID-19 pandemic, which froze the court system and violated his right to a speedy trial, causing his bail to be reassessed and lowered, to a risk assessment on Brooks being completed, but not uploaded to the prosecutor’s office server. Republicans also point to other cases of people who committed new, sometimes violent crimes, after being released on bail. Republican legislators who’ve pushed for stricter bail say that judges are unable to consider a person’s past criminal history when setting bail. Lawyers and criminal justice experts, however, have countered that judges in fact have wide discretion on setting conditions for pretrial release. Under the state constitution, cash bail may only be set to assure that a person reappears in court.

This is how the bail referendum question will be framed on ballots in April. What the state considers to be violent crimes are also being redefined as part of the constitutional amendment. “Too often in this building, legislation has been passed based off of beliefs, based off of feelings, and based off of what people think is best.” Larson said, adding that the bail amendment is one such policy.

Whether they’re guilty of a crime or not, people who are unable to pay for bail often experience similar issues. John McCray-Jones, a policy analyst for the American Civil Liberties Union (ACLU) of Wisconsin, asks, “How do you think your life would be if, in this moment, someone ripped you out of your life, and disconnected you from everyone for, lets say, a week.” At that moment jobs could be lost, rent payments missed which could lead to evictions, along with many other challenges.

“For many people who are still legally innocent that’s what happens in pretrial detention,” explained McCray-Jones. “On any given day, two-thirds of the people in jail, or over half a million people in the United States, are caged without being convicted of any crime. For reference, that’s almost the size of Milwaukee. And most of them are there simply because they couldn’t afford to bail themselves out. Nationwide, on average, people are held pretrial for 26 days, though most are released in the first week of arraignment. Still, that’s far too long.” Researchers at Harvard University found that even one day spent in pretrial detention can have lasting, damaging effects on a person’s life.

MaryAnne Olson, executive assistant of Ex-Incarcerated People Organizing (EXPO), knows this all too well. According to the Vera Institute of Wisconsin, incarceration of women in Wisconsin has gone up 897% since 1980. A report by Prison Policy Initiative also found that 75% of women under the control of any U.S. correctional system are on probation. The report notes that, like bail, probation comes with “step-up fees” which, if not paid by the women, can lead to non-criminal “technical” violations of probation. The report also found that 53% of incarcerated women are more likely to be jobless than employed in the month before their arrest. Women are also more likely to be written up for a prison rule violation, especially a minor violation, at a rate of 53%.

Olson, like many people in EXPO, is formerly incarcerated herself. She will not be able to vote until 2040, excluding her from casting a ballot in the April bail referendum. “In 2012, I was held for nine months pretrial detention,” said Olson on Thursday. “The lowest my bond ever got was $50,000. I eventually had a nervous breakdown and I pled, and I’m currently 11 years into a 28-year sentence, for seven of the lowest felonies at the time that you could get in Wisconsin. Pretrial detention does not solve problems, does not disappear problems. I promise you, it will only disappear people.”

If wraparound services were provided, as the bill package pushed by Clancy and Larson proposes, then organizations like EXPO would likely be directly involved in working with peer support specialists and others to provide those services, Olson said.

Other people also spoke to how bail has directly affected their lives. Donyae Robinson, who works with Black Leaders Organizing Communities (BLOC), recalled that the first time he was arrested at 16, he was waived into adult court. “But they still held me in juvenile,” said Robinson, “then when I got to adult court, my bail went from $5,000 to $10,000, which I couldn’t pay.” One of Robinson’s brothers was held for $250,000 bail after a car accident, while another brother had bail set at $100,000. “We just thought it was normal,” said Robinson, who says that he has since learned otherwise.

Jerome Dillard, director of EXPO, said he was also held in pretrial detention for 18 months. After those months, Dillard took a deal, “although I was innocent,” he said. “The sentence was one year in the county jail, and one year of probation.” Dillard stressed that, “these individuals have been determined indigent, meaning they qualify for a public defender.” He added, “individuals are being detained because they’re poor.” Dillard feels the Republican-backed bail changes would only escalate an already, “overwhelmed, understaffed criminal legal system that we have today.”

Criminal justice advocates point to states like New Jersey, which have used risk assessment reforms to great effect. In New Jersey, where a 2013 study found that 40% of people held in jails were unable to afford bail, cash bail has been mostly eliminated.

As of Thursday morning, the Milwaukee County Jail had a population of 938.

The facility, which has a max population of 972, has had problems with the safety of people held there, as well as overcrowding, for years. To prevent overcrowding, the Racine County jail offers to hold up to 80 incarcerated people from Milwaukee’s jail. According to a Department of Corrections inspection of the jail in 2022, the jail has developed a process with the Milwaukee Police Department to pay bail while individuals are waiting for transfer to the jail. On the day the inspection was conducted, the jail was just 11 occupants short of reaching its maximum capacity.

Thursday morning also brought news of the second in-custody death at Milwaukee’s jail so far this year. A 37-year-old man was found unresponsive by correctional staff. Last year, protesters took to the streets raising awareness of the death of 21-year-old Brieon Green, who was found unresponsive shortly after arriving at the jail. Officials say Green committed suicide. Green’s family says video from inside the jail — which hasn’t been publicly released — shows Green strangling himself as a correctional officer walks past his cell. Since 2022, there have been two alleged suicides within the jail and two more deaths for unknown reasons.

Clancy and his cosponsors stress that risk assessment tools and reform can reduce the strain on the jail. “When we massively over-incarcerate like we do now, it does put strain on the systems that we already have in place,” said Clancy. “Nobody’s interest is served by having somebody in jail that long.”

Advocates push for evidence-based bail laws in Wisconsin was originally published by the Wisconsin Examiner.