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Bail Wars: Getting You Out of Jail

Cash bail is being abused in Wisconsin.  The Wisconsin attorneys at Nicholson, Gansner & Otis are fighting back.

"Bail" is defined in the Wisconsin statutes as "monetary conditions of release."

It is commonplace in Wisconsin for a court to impose thousands of dollars of cash bail in cases where a defendant is charged with a serious crime.  This means that a defendant who has been charged--but not convicted--of a serious crime must post thousands of dollars to be released from jail, or sit in jail as he (or she) awaits trial.  

Applying cash bail in this manner-reflexively, almost automatically in cases where a serious felony is charged, and in large amounts-is inconsistent with the law. It amounts to pre-trial detention. This is not what bail is for. There is a legal presumption in favor of pre-trial release without posting cash bail. Which, if one thinks about it, makes perfect sense; it is consistent with the presumption of innocence. In this country, a person charged with a crime is presumed innocent until he is proven guilty. If a person is presumed innocent, it is not right or reasonable to hold him in jail until he is proven otherwise. As a result, if courts are actually to follow the law, a defendant can be required to post cash bail only under certain circumstances.

Under Wisconsin law, cash bail may be imposed only upon a finding by the court that there is a reasonable basis to believe that cash bail is necessary to assure the appearance of the defendant in court. There's a lot of legalese to unpack there. What it means is that, under the law, a court may only order cash bail if it first makes a finding that without cash bail the defendant may not show up for future court dates. There is a presumption that cash bail is not necessary. So the burden is on the government to demonstrate some factual basis for the court to believe that the defendant might not show up unless cash bail is ordered.

It is the position of the attorneys at Nicholson, Gansner & Otis that a serious felony charge or charges alone are not enough to overcome the presumption in favor of no cash bail. That is, just because someone is charged with a serious felony does not automatically mean, without any other facts, that he is unlikely to show up for future court dates. Prosecutors routinely argue the opposite, and judges routinely accept the opposite without any actual data or proof that it is so. The argument made by prosecutors is that a person charged with a serious crime faces the possibility of a long prison sentence, which provides a strong incentive to run, flee, or otherwise not show up for court. The corollary is that if a person posts a large amount of money in order to secure his release, he is more likely not to run because he will not want to forfeit all that money. But we are unaware of any data-that is, evidence, or proof-that this is statistically true.

The law makes it clear that for a judge to make a finding that cash bail is necessary to assure the future appearance of the defendant, it must be presented with some evidence to support that finding. Under the law, a court may not blindly accept the prosecutor's common argument. To accept the common argument is to accept the proposition that all people charged with a serious crime are unreliable and unlikely to appear for court. The problem for the government is that there is no data that we are aware of that supports it.

To the contrary, there are social science studies which demonstrate that the ability to pay bail is not a strong predictor of pre-trial success (defined as appearing at all court dates and remaining arrest-free).

Ties to the community through family and work are strong predictors of pre-trial success, these studies show. A history of prior felony convictions, juvenile arrests, and missed court dates are, not surprisingly, associated with pre-trial failure. Even for a defendant with some risk of pre-trial failure, the chance of success can be increased through supports like Dane County's Bail Monitoring Program.

What does this mean for you? It means that if you are facing serious felony charges, it does not automatically follow that you should be rotting away in jail while you await trial. There are times when cash bail, even a large amount of cash bail, is legally appropriate. But far too often, defendants who should not be sitting in jail before trial are. Judges have come to accept superficial arguments unsupported by data from prosecutors. This has become the status quo around Wisconsin. But not with us. We are pushing back.

If you are facing serious charges, it is important that you remain free as you await your day in court. Of course you would prefer the comfort of your own home and the support of your family and friends over the jail. More significantly, you will be better able to assist in your own defense if you are out in the community.

If you are facing serious felony charges (homicide, sexual assault, stalking, domestic violence, drug offenses), call the Wisconsin criminal trial attorneys of Nicholson, Gansner & Otis. We are fighting the bail wars. We have had great success keeping clients out of custody as they fight their charges. Call us today for an assessment of the particular facts of your case.

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