Approximately 15-30 minutes into most episodes of the television show Law &Order there is a standard hand-off. The crime has been investigated and a perpetrator arrested, and the lawyers are about to take over. The clear signal that the “cop show” is turning into a “legal drama” is often a court hearing when a judge determines bail (or the amount of money an arrestee must pay to get out of jail while awaiting trial). Actual tradition and television legal dramas have normalized the use of money in this manner.
However, not every jurisdiction allows money to be such a vital determiner of pretrial freedom. Several organizations have heralded Washington, D.C.’s pretrial system for its virtual absence of money bail.1 Other jurisdictions, including an increasing number of counties in Wisconsin, are experimenting with incorporating new bail processes that may reduce the role of money. [See “Milwaukee Moves Away From Cash-based Pretrial Release.”] The differences between these types of pretrial systems are not merely ornamental. The ability, or conversely inability, to afford bail implicates many factors, including incarceration rates, state and county budgets, racial and socioeconomic disparities in criminal justice, public safety, and individual liberty.
Background on Bail
In 1965, then U.S. Attorney General Robert Kennedy stated, “usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is simply, money. How much money does the defendant have?”2
Kenechukwu Okocha, U.W. 2007, is a former Dane County assistant district attorney. He currently is Assistant U.S. Attorney for the District of Columbia. (The views expressed in this article are the author’s and do not necessarily reflect those of the U.S. Attorney’s Office.)
Kennedy championed the Bail Reform Act of 1966 in response to his concerns regarding the influence of money in pretrial incarceration. The act curbed the use of monetary bail in the federal system and shifted the focus of judicial consideration in pretrial release to defendants’ likelihood of returning to court (that is, their flight risk).3 In 1984, a new crime bill overhauled the federal bail system, allowing judges to consider dangerousness or the impact a defendant’s release would have on the safety of others.4
In 1987, the U.S. Supreme Court affirmed that, with the proper procedural safeguards, a defendant’s dangerousness and flight risk were constitutionally permissible bases for pretrial detention.5 Both federal and state courts must abide by the 1987 Supreme Court ruling, but the two bail reform acts apply only to federal courts.
Wisconsin’s Pretrial System
The Wisconsin Legislature created a pretrial release system in which, if monetary bail (also known as cash bond) is imposed, it is restricted to an amount that will ensure a defendant’s return to court.6 In determining whether to issue monetary bail, a Wisconsin judicial officer (a commissioner or judge) must review a whole host of statutorily proper considerations including the nature and gravity of the offense and the defendant’s criminal history and previous performance on release.7
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The defendant’s ability to pay is also a consideration but is not necessarily a determining factor when setting the bail amount.8 Thus, bail can be set above the amount a defendant is able to pay if deemed necessary to ensure his or her appearance at later court hearings.9 Consequently, a defendant may remain in custody until the resolution of his or her case, strictly because of an inability to afford a bail payment.
Wisconsin lawmakers provided options beyond bail. Judicial officers may also order the defendant’s release under a signature bond, which is essentially a promise to return to court. Signature bonds are often reserved for defendants who commit minor offenses and show minimal dangerousness or flight-risk factors. Judicial officers may also order defendants to follow specific conditions while awaiting trial (for example, not to possess firearms, not to drink alcohol, or to stay away from the victim).10 An obscure legal provision allows judicial officers under certain circumstances to detain defendants without bail for certain dangerous crimes, but this provision is rarely used.11
Independent assessments and monitoring of defendants are available on a county-by-county basis. Certain counties give judicial officers discretion to implement additional tools for greater monitoring of released defendants, such as ordering installation of GPS tracking devices, frequent check-ins, or specialized pretrial programming for alcohol or other drug abuse. Other counties release defendants on cash or signature bonds with limited or no outside monitoring of compliance.
As part of the overall bail scheme, the Wisconsin Legislature also ordered the yearly promulgation of a uniform bail schedule.12 This schedule designates specific bail amounts for misdemeanor offenses and is often used by law enforcement officers when judicial officers are unavailable. New arrestees can avoid waiting days in jail for a bail hearing by paying the law enforcement agency the amount designated on the schedule. However, an inability to pay results in detention until a bail hearing can be scheduled.
Washington, D.C.’s Pretrial System
In the District of Columbia (D.C.), defendants are not incarcerated pretrial because they cannot afford bail nor are they generally allowed to pay for release.13 If after a hearing a judicial officer determines a defendant is too dangerous or too great a flight risk, the defendant is detained.14
D.C. lawmakers enacted a rebuttable presumption that a defendant is too dangerous to be released pretrial if the judicial officer finds probable cause that he or she committed certain offenses, such as murder or a violent felony while armed with a firearm.15 In other circumstances (for example, if the defendant is charged with a misdemeanor and is on probation) the judicial officer has discretion to determine the defendant’s pretrial detention or release.16 For most of the remaining situations, the judicial officer must release the defendant on his or her own recognizance.17 D.C. judicial officers may order conditions of release similar to those used in Wisconsin.18
D.C. has established a pretrial services agency (PSA), which aids judicial officers in making a decision to detain or release. PSA officers interview defendants shortly after their arrest and investigate their background. The PSA thereafter conducts a 70-factor risk assessment and issues a recommendation regarding detention or release.19 PSA officers are also responsible for monitoring defendants while they are on release, which can include conducting regular check-ins, administering drug tests, and installing GPS tracking devices.
Additionally, D.C. does not have a bail schedule. For minor-misdemeanor arrests, defendants either wait for a pretrial release hearing or are released with a citation that orders them to return to court later.
The Role of Bail Bond Agents and Commercial Bail in Pretrial Release Systems
Bail bond agents, or bail bondsmen, are private actors who profit by acting as a surety for defendants who cannot afford to pay their bail. Generally, in commercial bail systems bail bond agents pay the total bail in exchange for a fee paid by defendants. The fee is often 10 percent of the total bail amount. The bail bond agents are financially responsible for ensuring defendants appear at their hearings. The court returns the entire bail to the bail bond agents when defendants successfully make their court appearances. The agents keep the 10 percent fee as revenue. However, the court holds the agents responsible for the entire bail when defendants fail to appear. Courts often give bail bond agents an opportunity to return the defendants when they abscond. Often agents employ bounty hunters to capture fugitive defendants.
The bail bond industry has been a strong opponent of the recent bail reform efforts in New Jersey, Maryland, and New Mexico, often out of fear of job loss.71 Additionally, supporters of the industry often claim that commercial bail is the better pretrial release option to ensure court appearances. These supporters often cite a U.S. Department of Justice study that between 1990 and 2004, felony defendants when released with bail appeared more often than those released on their own recognizance.72 However, critics note that the study had several limitations,73 among them that the study did not control for important factors such as the defendant’s employment status, community ties, residency, or substance abuse.74
Major national organizations representing varying criminal justice actors (to include the American Bar Association, National Association of Criminal Defense Lawyers, National Association of Pretrial Services Agencies, and National District Attorney’s Association) have opposed commercial bail.75 These organizations often note four main arguments, claiming that commercial bail 1) disconnects ability to pay from possible risks to public safety; 2) abdicates the decision of release from courts to for-profit entities; 3) hampers transparency because important decisions regarding the release of defendants are made in secret by private actors; and 4) discriminates against individuals with relatively low incomes or low assets.76
Commercial bail is illegal everywhere in the world except the Philippines and certain jurisdictions in the United States.77 Wisconsin, Illinois, Kentucky, and Oregon have also outlawed commercial bail.78 In 2013, the Wisconsin Legislature sought implementation of a commercial bail system.79 The Milwaukee Journal Sentinel claimed that judges, clerks of courts, sheriffs, and others in the legal community (including then Attorney General J.B. Van Hollen) “nearly universally opposed the plan.”80 Some of the judges and clerks were concerned that the bail money, currently designated for victim’s restitution, would instead end up as profit for bail bond agents.81 Governor Scott Walker eventually vetoed the commercial bail plan.82
A Question of Fairness
The U.S. Supreme Court stated, “[i]n our society, liberty is the norm, and detention prior to trial … is the carefully limited exception.”20 The American Bar Association (ABA) appears to cast doubt on whether money bail can be the proper tool for this exception, noting its “very nature requires the practically impossible task of transmitting risk of flight into dollars and cents.”21 According to the ABA “[p]retrial incarceration should not be brought about indirectly through the covert device of monetary bail.”22 The ABA further notes that money bail can lead to two disturbing scenarios: “a defendant who could safely be released may be detained or a defendant who requires confinement may be released.”23
Unfortunate examples of the inequities of wealth-based pretrial detention or release abound. In 2015, a Texas judicial officer ordered Sandra Bland to pay a $515 bond after being charged with an offense akin to assaulting an officer.24 (According to the Federal Reserve, 46 percent of adults could not afford an emergency $400 payment in 2015.25) Bland could not afford her bail.26 As a result she was incarcerated and she died in custody a few days later.27 A grand jury ended up indicting the police officer who accused Bland of assault for perjury charges stemming directly from his mishandling of her arrest.28
In 2010, a New York judicial officer held 16-year-old Kalief Browder on $3,000 bail for stealing a backpack.29 The prosecution refused to try his case and instead requested eight continuances of the trial date.30The court did not release Browder until approximately three years later when the prosecution agreed to dismiss the charges.31 While incarcerated Browder attempted suicide six times and eventually took his own life after he was released.32
While Bland and Browder were incarcerated, wealthy movie director and convicted child sexual abuser Roman Polanski remained free in Europe. The state of California charged Polanski with child rape-related offenses in 1978.33 A judicial officer released him on $2,500 bail.34 Polanski pleaded guilty to one of those charges, but fled the country before his sentencing.35 Polanski is currently working on his latest film as he travels through France and Poland, which have both refused to extradite him.36
In Texas, law enforcement officials arrested Robert Durst for a murder while the authorities in New York were investigating him for a separate murder.37 Durst, heir to a real estate fortune, promptly paid the $300,000 Texas bail and fled the state, launching a man-hunt for the arrested murder suspect.38
Aside from the extremes faced by Bland and Browder, wealth-based pretrial incarceration often has additional collateral consequences. Defendants who remain in custody pretrial may lose employment or surrender access to state services. As a result, they can lose housing or be unable to afford legal fees. Incarcerated defendants often have less opportunity to coordinate with their lawyer or witnesses for trial preparation. Studies also show that money bail has a disparate impact based on race. An Ohio study revealed that judicial officers issue African-Americans ages 18-29 significantly higher bail amounts than all other types of defendants.39
Increasing Costs to Taxpayers
Taxpayers are paying additional money to keep pace with the large increases in pretrial jailing of defendants. Local jail populations grew by approximately 19 percent between 2000 and 2014 and pretrial detainees accounted for 95 percent of that growth.40 In 2009, 61 percent of inmates in jail were in pretrial status, while in 1996 the same population was just over 50 percent.41 The increased use of money bail appears to be a major contributor to the rise in jail populations. Between 1990 and 2004, the percentage of pretrial defendants released from custody fell from 66 percent to 56 percent.42 Conversely, during that same period, the proportion of defendants required to post money bail rose from 54 percent to 69 percent.43
Increased jail populations create issues for both the detained pretrial defendants and the public. Pretrial detainees may suffer from unsafe jail conditions, which often accompany overcrowded jails. Lawsuits resulting from poor conditions connected to excessive jail populations can cost local governments’ taxpayer funds in damages.44 For example, Sandra Bland’s family settled her wrongful death lawsuit for $1.9 million and changes to jail procedures.45 Additionally, overcrowding can result in the early release of actual convicted criminals, when early release is a remedy for lawsuits based on poor jail conditions.46
Proponents of money bail often express concern over implementation costs for monitoring programs and societal costs associated with defendants on release reoffending or failing to return to court. D.C.’s pretrial services agency system benefits from a federally funded $62 million budget.47 However, the average cost for pretrial incarceration is more than 10 times greater than its monitoring alternative.48 Additionally, nationwide 47 percent of felony defendants are held due to bail they cannot afford, while in D.C. that amount is zero.49
Other jurisdictions have implemented pretrial programs similar to that of D.C. with marked benefits. Harris County, which includes the city of Houston, Texas, saw savings of $4,420,976 after implementing a pretrial review system in 2010.50 In 2007, Allegheny County, which includes the city of Pittsburgh, Penn., instituted a pretrial supervision program that reduced jail populations by 30 percent and decreased defendants’ missed court appearances.51
Nationwide Change in Bail Systems
Many jurisdictions across the country are adjusting their bail systems to reduce the role of money. In 1976, Kentucky introduced a statewide pretrial supervision program that currently assesses defendants’ backgrounds and sorts them into risk categories based on danger and flight.52 The Kentucky Legislature in 2011 mandated nonmonetary release conditions for low-risk defendants.53 Less than two years after the law’s issuance, Kentucky’s non-bail release rate increased from 50 percent to 66 percent, pretrial jail populations decreased by 279 individuals, and defendants’ court appearance and recidivism rates remained steady.54
In 2015, the New Mexico Supreme Court held that $250,000 bail for an indigent defendant charged with murder was excessive, noting he had minimal dangerousness or flight-risk factors.55 The court later created a task force to revamp New Mexico’s bail scheme.56 The task force proposed an amendment to the New Mexico Constitution prohibiting bail above what defendants can afford and expanding the power of judges to hold defendants without bail for dangerousness and risk of flight.57 In November 2016, the amendment passed with 87 percent of the electorate.58 Legislative analysts estimated a $17 million savings due to the reduction in overcrowded jails.59
A 2013 study found that 38.5 percent of New Jersey defendants were in jail because they could not afford to pay bail.60 New Jersey lawmakers decided to implement statewide bail reforms that commenced in January 2017.61 The reforms instituted pretrial service agencies to conduct risk assessments, encourage nonmonetary release, and allow detention without bail for defendants deemed too dangerous or flight risks.62 Since implementation, judicial officers have all but eliminated the use of monetary bail.63
In October 2016, the Maryland attorney general questioned the constitutionality of the state’s money-based bail system and suggested changes to the criminal rules of procedure.64 In response, the Maryland Court of Appeals issued landmark new rules, scheduled to commence in July 2017, that forbid judicial officers from setting bail above what defendants can afford.65
Since 2015, Equal Justice Under the Law, a nonprofit organization, has challenged bail systems across the country on behalf of indigent defendants.66 In many of these cases, the nonprofit claimed that setting bail above what a defendant can afford is unconstitutional and particularly decried the use of inflexible bail schedules.67 In eight separate cases, Equal Justice Under the Law has secured changes to jurisdictions’ bail systems to account for the needs of indigent individuals.68
Similarly, the U.S. Department of Justice (USDOJ) Civil Rights Division under the Obama administration challenged bail structures on behalf of indigent defendants. The USDOJ previously joined with Equal Justice Under the Law in at least one of those challenges.69 In Ferguson, Mo., the USDOJ secured a consent decree ensuring that defendants are not held in custody because they cannot afford bail.70
Certain Wisconsin jurisdictions appear to be in various stages of catching the trend. Although setting bail above what a defendant can afford remains an option statewide, counties like Milwaukee, Dane, Eau Claire, Portage, Chippewa, La Crosse, Marathon, Outagamie, Rock, and Waukesha have adopted, or are experimenting with, pretrial risk assessment programs.
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I also value that my perspective on each case shapes how society views justice. Through reviewing and conducting investigations I determine what, if any, crime has been committed. As cases progress, I negotiate plea agreements, review facts, and determine whether to go to trial or dismiss charges. Prosecutors are one of the few attorney positions in which cases’ initiation, dismissal, or settlement are determined by the lawyer and not the client. For me, it is liberating and fulfilling to have my idea of justice as the sole consideration when making those decisions. My actions in each case influence how my community prioritizes rehabilitation, punishment, deterrence, and equity in the application of our criminal laws. Being such a steward of the community is a wonderful privilege and responsibility and the most rewarding part of my job.
Kenechukwu Okocha, Assistant U.S. Attorney for the District of Columbia, Washington, D.C.
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1 ABA Criminal Justice Section, Frequently Asked Questions About Pretrial Release Decision Making; Harvard Law School: Criminal Justice Policy Program, Moving Beyond Money: A Primer on Bail Reform 15 (Oct. 2016); Arthur W. Pepin, Conference of State Court Administrators, 2012-2013 Evidence-Based Pretrial Release 7.
2 National Criminal Justice Reference Service, Proceedings and Interim Report from the National Conference on Bail and Criminal Justice 297 (1965).
3 Bail Reform Act of 1966, S. 1357, 89th Cong. (1966).
4 Bail Reform Act of 1984, H.R. 5865, 98th Cong. (1984).
5 United States v. Salerno, 481 U.S. 739, 755 (1987).
6 Wis. Stat. § 969.01(4).
8 Id.; State v. Taylor, 205 Wis. 2d 664, 672, 556 N.W.2d 779 (Ct. App. 1996).
9 Wis. Stat. § 969.01(4); Taylor, 205 Wis. 2d at 672.
10 Wis. Stat. § 969.01(1).
11 Wis. Stat. § 969.035.
12 Wis. Stat. § 969.065.
13 D.C. Code § 23-1321(c)(3).
14 D.C. Code § 23-1322(b)(2).
15 D.C. Code §§ 23-1321(a), 23-1322(c).
16 D.C. Code §§ 23-1322(a)(1)(A), 23-13-22(a)(1)(C).
17 D.C. Code §§ 23-1321(b), 23-1321(c)(1).
18 D.C. Code § 23-1321(c)(1).
19 Ann E. Marimow, When It Comes to Pretrial Release, Few Other Jurisdictions Do It D.C.’s Way, Wash. Post, July 4, 2016.
20 United States v. Salerno, 481 U.S. 739, 755 (1987).
21 ABA Standards for Criminal Justice, Third Edition, Pretrial Release, Introduction, at 31.
22 Id., General Principles, at 35.
24 Debbie Nathan, What Happened to Sandra Bland, The Nation, April 21, 2016.
25 Board of Governors of the Federal Reserve System, Report on Economic Well-Being of U.S. Households in 2015, May 2016.
26 Nathan, supra note 24.
28 David Graham, A Perjury Charge for the Cop Who Pulled Over Sandra Bland, The Atlantic, Jan. 6, 2016.
29 Jennifer Gonnerman, Before the Law: A Boy was Accused of Taking a Backpack, The Court’s Took the Next Three Years of His Life, The New Yorker, Oct. 6, 2014.
32 Dana Ford, Man Jailed as Teen Without Conviction Commits Suicide, CNN, June 15, 2015.
33 Jeffrey Toobin, The Celebrity Defense: Sex, Fame, and the Case of Roman Polanski, The New Yorker, Dec. 14, 2009.
36 Id. Agence France-Presse, Roman Polanski Hopes Plea Deal Will Enable His Return to the US, The Guardian, Feb. 17, 2017; David Ng, Roman Polanski Picks France Over Poland to Shoot New Movie on Dreyfus Affair, L.A. Times, June 3, 2016; Doug Stanglin, Polish Court Won’t Extradite Roman Polanski to U.S., USA TODAY, Oct. 13, 2015.
37 Ron Todt, Fugitive Heir Robert Durst Arrested in Pennsylvania, Spartanburg Herald-Journal, Dec. 1, 2001.
39 John Wooldredge, Distinguishing Race Effects on Pretrial Release and Sentencing Decisions; Justice Quarterly, Vol. 29, Iss. 1, 2012.
40 Todd Minton & Zhen Zhang, USDOJ, Bureau of Justice Statistics (BJS), Jail Inmates at Midyear 2014 (June 2015).
41 Todd Minton, USDOJ, BJS, Jail Inmates at Midyear 2011 – Statistical Tables (April 2012).
42 Thomas Cohen & Brian Reaves, USDOJ, BJS, Pretrial Release of Felony Defendants in State Courts (Nov. 2007).
44 42 U.S.C. § 1983; 42 U.S.C. § 1997e.
45 Carma Hassan, Holly Yan & Max Blau, Sandra Bland’s Family Settles for 1.9M in Wrongful Death Suit, CNN, Sept.15, 2016.
46 18 U.S.C. § 3626(a)(3).
47 Marimow, supra note 19.
50 Arthur W. Pepin, Conference of State Court Administrators, 2012-2013 Evidence-Based Pretrial Release.
51 Allegheny Cty. Dep’t of Human Servs., Pretrial Decision-Making, How a Model Pretrial Services Program Changed Allegheny County’s Criminal Justice System (July 2014).
52 Kentucky Court of Justice, Pretrial Services, (last visited May 4, 2017); Alysia Santo, The Marshall Project, Kentucky’s Protracted Struggle to Get Rid of Bail (Nov. 12, 2015).
53 Kentucky legislation, 11 RS HB 463/EN; Mark Heyerly, Pretrial Services Administrative Office of the Courts Kentucky Court of Justices, Pretrial Reform in Kentucky (Jan. 2013).
55 State v. Brown, 338 P.3d 1276 (N.M. 2014).
56 J.B. Wogan, Governing: The State and Localities, Can’t Afford Bail? In One State, That Doesn’t Matter Anymore, Nov. 9, 2016.
57 Id.; N. M. Const. Art II, § 13.
58 Wogan, supra note 56.
60 Marie VanNostrand, New Jersey Jail Population Analysis: Identifying Opportunities to Safely and Responsibly Reduce the Jail Population, provided by Luminosity in Partnership with the Drug Policy Institute, March 2013.
61 N.J. Legis. Senate SB946. Reg Sess. 2014-2015 (2014).
63 Lisa W. Foderaro, New Jersey Alters Its Bail System and Upends Legal Landscape, N.Y Times, Feb. 6, 2017.
64 Letter from State of Maryland Office of the Attorney General to the Chair of the Standing Committee on Rules of Practice and Procedure, Oct. 25, 2016.
65 Michael Dresser, Maryland Court of Appeals: Defendants Can’t Be Held in Jail Because They Can’t Afford Bail, Baltimore Sun, Feb. 8, 2017.
66 Megan Flynn, Group Sues Harris County Over Bail System That Keeps People in Jail Just Because They’re Poor, Houston Press.
67 Walker v. City of Calhoun, No. 4:15-CV-0170-HLM (N.D. Ga. Jan. 28, 2016); Pierce v. City of Velda City, No: 4:15-cv-570-HEA (E.D. Mo. June 02, 2015); Thompson v. Moss Point, No. 1:15-cv-182LG-RHW; Varden v. City of Clanton, No. 2:15cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept 14, 2015).
68 See supra note 67.
69 U.S. SOI, Varden, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015).
70 Consent Decree (Doc 41), United States v. City of Ferguson, No. 4:16-cv-180 (E.D. Mo. Apr. 19, 2016).
71 Michael Dresser, Busch: Maryland House Will Not Vote on Cash Bail Bill, The Baltimore Sun, April 6, 2017; Foderaro, supra note 63; Thomas Cole, Bail Bond Industry Gears Up to Fight Proposal, Albuquerque Journal, Jan. 15, 2016.
72 Kate Lind, Wisconsin Policy Research Institute, Should Wisconsin Allow Commercial Bail in Pretrial Release (March 2013); Thomas Cohen & Brian Reaves, USDOJ, BJS, Pretrial Release of Felony Defendants in State Courts (Nov. 2007).
73 Pretrial Justice Institute, Understanding the Findings from the Bureau of Justice Statistics Report …, Fact Sheet 2008; Dave Umhoefer, Vos Says Study Shows Defendants Skip Court Appearances More Frequently in Wisconsin Than in Other States, PolitFact Wisconsin, June 24, 2013.
75 ABA Standards for Criminal Justice, Third Edition, Pretrial Release, Standard 10-1.4(f), at 42; National Association of Criminal Defense Lawyers, Policy on Pretrial Release and Limited Use of Financial Bond; National Association of Pretrial Services Agencies, Standards on Pretrial Release (3d ed. 2004); National District Attorney’s Association, National Prosecution Standards (2d ed. 1991). The NDAA has released a third edition to its standards here; https://tinyurl.com/ljf2deb.
76 ABA, Pretrial Release, Standard 10-1.4, at 45.
77 Alysia Santo, When Freedom Isn’t Free: The Bail Industry Wants to Be Your Jailer, Feb. 23, 2015.
79 Patrick Marley, J.B. Van Hollen Calls on Scott Walker to Veto Bail Bonds Budget Item, Milw. J. Sentinel, June 24, 2013.
82 Jason Stein & Karen Herzog, Scott Walker Issues 57 Vetoes, Signs $68 Billion Wisconsin Budget, Milw. J. Sentinel, June 30, 2013.