This series explores the use of cash bail in Wisconsin and around the country.
In many states, pretrial inmates may end up in heavy debt to bail bondsmen, even if they are ultimately acquitted. Wisconsin is one of a handful of states that have laws banning bail bonding, having abolished it in 1979.
Bail bonding is the practice of hiring a third-party bail bondsman who pledges to pay the full cash bond amount if the defendant fails to appear for court. The defendant is released after paying a non-refundable fee, usually 10 percent of the bond amount, to the bail bondsman. Even if the defendant is innocent and the charges get dropped, he or she does not get that money back.
In August, California became the most recent state to vote to eliminate cash bail. That move would have put the state’s bail bond industry out of business starting in October 2019.
But the industry submitted enough signatures to require a statewide referendum before the law goes into effect. Those signatures were verified in January, putting the new law on hold until the November 2020 referendum.
Bail is defined in Wisconsin statutes as “monetary conditions of release,” but is often used interchangeably with bond.
Bond is a form of security to ensure a defendant’s appearance at future court dates. It can be in the form of cash, property or their signature.
Cash bond, or cash bail, is an amount of money defendants have to pay to be released from jail while their cases are pending. The money is returned to them if they show up to court and comply with the conditions of their release, unless the defendant owes restitution or other fees to the court. Then, the bail money would first be applied to those fees.
A bail bondsman is a third party who pledges to pay the full cash bond amount if a defendant fails to appear for court. The defendant is released after paying a non-refundable fee, usually 10 percent of the bond amount, to the bail bondsman. Wisconsin is among the few states to have outlawed this practice.
The American Bar Association, the National District Attorneys Association and other groups agree that commercial bail bonding adds to the inequities of pretrial cash bail, with defendants who cannot afford the bail forced to pay even more money to cover the cost of the commercial bail bond.
When asked his opinion on the bail bond system, New York City Comptroller Scott Stringer responded, “Commercial bail siphons money from thousands of low-income New Yorkers to the pockets of opportunistic bondsmen … They’re costing taxpayers millions, and they’re not making our city any safer.”
Nevertheless, the bail-for-profit industry is a frequently used method in this country for securing freedom while awaiting trial. Wisconsin and a handful of other states, including Illinois, Kentucky and Oregon, currently prohibit commercial bail bonding. Some activists would like to abolish cash bail altogether, but there is a strong profit motive from the bail bond industry to keep the practice alive.
To counter the claims of bail reform advocates, the AIA Bail Bond Surety Co. has circulated a report titled, One Thing Missing from the Bail Reform Debate: The Truth.
In the report, AIA spokesman Brian Nairin wrote, “Financially secured release is the MOST effective way to ensure a defendant’s appearance in court … Release through the public sector pretrial program is one of the LEAST effective methods.”
He wrote that, “The real victim of any crime is NOT the person accused of committing it. It is the person who the crime was committed against.”
Leslie Dollen, a former public defender and former lecturer at the University of Wisconsin–Superior’s legal studies program, said that assertion is “philosophically troubling” because “it rejects the constitutional presumption of innocence until proven otherwise.”
She added, “I find it abhorrent that we are incarcerating some people just because they happen to be poor.”
To beef up its lobbying efforts, the American Bail Coalition has aligned itself with the American Legislative Exchange Council (ALEC), an organization composed of lawmakers and corporations that draft state legislation to serve their members’ interests.
ALEC has pressed for legislation throughout the country to protect and expand the bond industry and the surety companies that insure them. Since it began lobbying, the American Bail Coalition has supported about a dozen of ALEC’s “model” bills, including a provision that enables some courts to make bond a requirement for early release from prison, Mother Jones magazine found.
In Wisconsin, there have been several attempts to bring bail bonding back. A pitch crept its way into the 2011-12 budget but was so vehemently opposed by then-Dane County Chief Judge William Foust and nine other Wisconsin chief judges that Gov. Scott Walker eliminated it by line-item veto. A later effort was made in the 2013-15 budget, but was again met with a veto by Walker.