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  • January 19, 2022

    Protecting the Presumption: The Constitutionality of Pretrial Detention in Wisconsin

    Individuals charged with a criminal offense are legally provided the presumption of innocence. However, those unable to post bond are subject to pretrial detention and the same treatment as those sentenced to confinement upon conviction. Nicole Muller explores the constitutional conflict between the presumption of innocence and pretrial detention in Wisconsin, and how attorneys can better advocate and protect the presumption of innocence.

    Nicole A. Muller

    county jail cell

    Imagine you were just charged with a criminal offense for the first time in your life.

    At your initial appearance, the judge or commissioner informs you that you are presumed innocent, but sets bond at $10,000. You come from poverty, and there is no chance that you or your family could post that amount of money.

    You are put onto a bus. They take your clothes and all your belongings, and in exchange give you a uniform and a cell. You lose your job and your housing, and you are forced to remain within the confines of a jail until your case concludes.

    You are treated no differently than those who are incarcerated after being convicted of a criminal offense. You can only eat what is provided and when it is provided. You cannot go outside. You cannot make phone calls when you want. You have no access to the internet, and you must abide by all the jail rules. You are not free, and you surely do not feel treated as the law presumes you to be: innocent.

    This is the reality for each individual currently in pretrial custody who cannot afford to post bond.

    The question arises: how can someone who is presumed to be innocent receive the same treatment as those who are sentenced to confinement after a criminal conviction? It seems inherently wrong. The answer is: It is wrong.

    Presumption of Innocence

    Although the presumption of innocence cannot be found in the U.S. Constitution, or even earlier in the Declaration of Independence, or going back even further the Magna Carta, it is perhaps the most fundamental principle in criminal law.

    Nicole A. Muller Nicole A. Muller, Marquette 2018, is an associate attorney with Birdsall Obear & Associates, LLC, Milwaukee, where she practices in criminal defense.

    In Coffin v. United States,1 the Supreme Court analyzed a trial court’s decision to refuse to instruct the jury that “the law presumes that persons charged with a crime are innocent until they are proven by competent evidence to be guilty.” In its decision, the Supreme Court held that “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

    From Coffin comes the maxim “innocent until proven guilty” into American jurisprudence. However, what has been long forged into due process of criminal law seems to have been forgotten when analyzing pretrial detention.

    The Increase of Pretrial Incarceration

    According to a 2020 report of the Prison Policy Initiative, pretrial detention in the U.S. has grown sharply since the 1980s, with approximately 550,000 people currently being held in pretrial detention. In Wisconsin, pretrial detention has historically been the fastest growing part of Wisconsin’s jails.

    The majority of those being detained pretrial are in custody because they cannot post bail set by a court. Courts are supposed to set bail to serve the purpose of protecting the community, preventing the intimidation of witnesses, and ensuring the appearance of the defendant – not to impose punishment.2

    The purpose of bail is apparent in the language of Wis. Stat. section 969.01, which requires courts to make a bail determination based on the level of risk an individual presents to the community. Section 969.01 also puts an emphasis on conditions surrounding monetary bail, in that courts must consider “the ability of the arrested person to give bail.”

    Also, Wis. Stat. section 969.01(4) makes clear the legislative intent that bail amounts should not be set to detain an in individual indefinitely in pretrial custody, even if they are considered to be a threat to the public: “if bail is imposed, it shall be only in the amount found necessary to assure the appearance of the defendant. Conditions of release, other than monetary conditions, may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses.”

    In State v. Taylor,3 the Wisconsin Court of Appeals clarified section 969.01 in relation to appropriate conditions of release for indigent defendants. In reviewing a case wherein cash bail was imposed on an indigent defendant, the court interpreted section 969.01 to hold that courts have the statutory authority to impose cash bail against an indigent defendant as a condition of release.4 However, the court concluded, when a defendant does not have the financial ability to meet the cash bail requirement, cash bail is not appropriate.

    The opinion in Taylor stems from the Supreme Court decision in United States v. Salerno,5 which held that, although there are appropriate circumstances to justify cash bail, it is never appropriate to limit an individual’s liberty interests solely due to an inability to afford a set bail amount.

    Constitutional Conflict of Pretrial Detention

    Those in pretrial custody are treated no differently than those who are serving a sentence. In other words, someone who is presumed innocent is receiving what is considered punishment for those convicted of a criminal offense.

    The issue of pretrial detention involves a deprivation of liberty. Under the Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution, the federal government and states, respectively, are prohibited from depriving a person of “life, liberty, or property without due process of law.”6

    Generally, pretrial incarceration of those who cannot afford to post bond denies these individuals of the right to liberty for an indefinite amount of time – something that has become apparent during the pandemic due to the backlog of cases, the inability of courts to hold trials, and the shortage of public defenders and inability to appoint counsel.

    In addition to due process complications, pretrial detention must also be scrutinized under an Eighth Amendment lens. Is bail excessive when it subjects a person who is presumed to be innocent to punishment in the form of pretrial detention? Although the Eighth Amendment provides some pretrial protections by prohibiting excessive bail, Wisconsin law has not provided answers on how to effectively challenge pretrial detention on this basis.

    The Supreme Court rejected the notion that federal pretrial detention is punishment in United States v. Salerno.7 The Court opined that federal pretrial detention constituted a permissible regulation that was not excessive under the Eighth Amendment.

    However, it is important to understand that the Salerno opinion deals with the federal Bail Reform Act – an act that only permits the detention of an individual accused of specific crimes after an adversarial hearing. Pursuant to 18 U.S.C. § 3142(f), an individual can only be detained in cases that involve:

    1. a crime of violence;

    2. an offense with a maximum sentence of life imprisonment or death;

    3. an offense for which the maximum term of imprisonment is 10 or more years as prescribed by the Controlled Substances Act;

    4. any felony if the person has been convicted of two or more offenses described in points 1-3 or comparable state offenses;

    5. a serious risk of flight; or

    6. a serious risk that the defendant will obstruct justice or threaten a witness.

    But even in those situations, a substantial hearing is required where the government must meet different burdens of proof depending on the reason it is seeking detention.

    Protecting the Presumption and Preventing Pretrial Punishment in Wisconsin

    Looking at Salerno, Wolfish, and 18 U.S.C. § 3142, Wisconsin practices fall short. Individuals are typically not detained following a hearing pursuant to Wis. Stat. section 969.035 – the mechanism that the Wisconsin Legislature developed for pretrial detention based on specified findings – but rather because they cannot afford to post bond set pursuant to section 969.01.

    Following the Salerno logic, pretrial detention is only a permitted regulatory activity due to the confines and the specific parameters of the Bail Reform Act, codified as 18 U.S.C. § 3142. Therefore, if someone is being detained outside of those parameters, the detention could be punishment and excessive contrary to the mandates of the Eighth Amendment. The same logic applies here in Wisconsin.

    Still, this does not address the underlying problem of subjecting presumed innocent people to punishment without due process.

    The dissent in Salerno provides insight. Specifically, the dissent argued that pretrial detention as a reasonable means of protecting the community from dangerous persons does not support the conclusion that pretrial detention is permissible regulatory activity as opposed to punishment.8 Justice Marshall’s dissent criticized the majority’s suggestion that the Excessive Bail Clause applies to the judiciary but not to the legislature.

    It is in Marshall’s dissent that the constitutional conflict here in Wisconsin becomes clear. The Salerno logic boils down to a very simple conclusion: because pretrial detention is the product of a congressional act, it is permitted regulation. It is nothing more than a constitutional illusion to conclude that, because pretrial detention commonly stems from the imposition of bail under section 969.01 and not from a hearing pursuant to Wis. Stat. section 969.035, pretrial detention is punitive.

    The majority of individuals in Wisconsin are not subjected to pretrial detention because of what the state Legislature has deemed to be a narrowly tailored regulative necessity pursuant to section 969.035, but rather due to the sole decision of a judge or commissioner when setting bond. The enactment of section 969.035 illustrates that the Legislature did not intend for people to be held indefinitely through the setting of bail amounts beyond their ability to pay.

    In fact, section 969.035 would be superfluous if pretrial detention was already permissible through the imposition of bail. Ergo, the utilization of bail to subject a presumably innocent individual to pretrial detention is unconstitutional.

    Ending Thoughts

    At the beginning of this article, I asked you to imagine a situation – a situation that sadly is a lot of people’s realities – a reality that should not exist. It is a reality that we, as lawyers, must change.

    The presumption is not going to protect itself. It never has. Perhaps this article serves its purpose and instills in you a spark to litigate the issue, or perhaps you disagree with the constitutional analysis.

    If you disagree, I challenge you to think of a different argument – because at the end of the day, there is no right way to protect the innocent, so long as the innocent are being protected.

    This article was originally published in the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.


    1 Coffin v. United States, 156 U.S. 432, 432-463 (1895).

    2 Wis. Stat. § 969.01(1).

    3 State v. Taylor, 205 Wis. 2d 664, Ct. App. Wis. 1996.

    4 Taylor, 205 Wis. 2d at 666.

    5 United States v. Salerno, 481 U.S. 739, 748 (1987).

    6 U.S. Const. amend. V; U.S. Const. amend. XIV, §1.

    7 Salerno, citing Bell v. Wolfish, 441 U.S. 520, 540 (1979).

    8 Salerno, 481 U.S. at 756-68.

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    Criminal Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Michael O'Hear and review Author Submission Guidelines. Learn more about the Criminal Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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