Cash bail is increasingly recognized as unfair and counterproductive to public safety. An individual who has been charged with a crime, but not yet convicted, should normally be released while awaiting a decision in their case. Current Wisconsin law embraces a “policy against unnecessary detention of the defendant pending trial,” but permits the court to require a cash payment as a condition for pretrial release. In effect, the use of cash bail makes liberty depend on economic position.
Even relatively low bail amounts of a few hundred dollars are beyond the reach of many economically struggling defendants and their families. And for the impoverished defendant who cannot make bail, a period of pretrial detention is apt to make difficult economic circumstances even worse—potentially leading to a loss of housing or employment.
In addition, research shows that pretrial detention is associated with worse case outcomes. Detention impairs a defendant’s ability to develop meritorious defenses and increases the pressure on him or her to plead guilty quickly regardless of guilt. Studies also indicate that defendants held pending trial have a higher conviction rate, are more likely to receive a jail sentence, and, on average, receive longer sentences than otherwise similar defendants who are able to secure pretrial release.
Because of this inequity in the justice system, the State Bar of Wisconsin supports efforts to reform the bail system by moving away from the use of cash bail, in favor of using a validated risk-assessment tool as the basis for pretrial detention decisions.
A few counties in Wisconsin have been experimenting with new approaches that rely on validated risk-assessment instruments. These counties are attempting to connect pretrial detention more closely to risk. Many other jurisdictions across the United States are also moving in this direction, and the results thus far are encouraging.
Unnecessary pretrial jailing can lead to job loss, enhanced financial distress for poor defendants and their families, and tends to increase the recidivism risk posed by low-risk defendants, among other indirect impacts on the justice system and society as a whole. For these reasons, we are urging state lawmakers to support efforts to reform bail practices in the upcoming legislative session.
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