State Rep. Cindi Duchow has been on a crusade for years to tighten up Wisconsin’s bail laws, and the effort began close to home.
“I have been working on this a long time,” the Delafield Republican told Empower Wisconsin last week. “It started mainly when a man on my street was charged with molesting his grandchildren and was out on ($75,000) bail. For several months he was free.”
A school bus stop was located close to the man’s home.
Duchow was shocked when Waukesha County law enforcement officials told her that judges couldn’t consider the seriousness of the crime or criminal history in setting the cash amount of bail. Wisconsin’s constitution states that monetary conditions of release may be imposed at the initial appearance in court “only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”
“I was appalled,” Duchow said.
The man was subsequently sentenced to 1st-degree sexual assault, repeated sexual assault of the same child. He will spend the rest of his life in prison.
Duchow last week joined State Sen. Van Wanggaard (R-Racine) in re-introducing a measure calling for an amendment to the state’s constitution. It would allow courts to consider more than whether a defendant will show up.
The Joint Committee on Judiciary and Public Safety will hold a public hearing on the proposed constitutional amendment resolution beginning at 10 a.m. Tuesday in Room 411 South of the State Capitol.
Currently, judges also may consider whether a defendant’s release would put the community at risk from serious bodily harm or lead to witness intimidation when setting pre-trial conditions, such as the use of GPS monitoring.
The Milwaukee County Court system cheaply considered the latter when it set free Darrell Brooks Jr. on just $1,000 bail days before he drove his SUV into the Waukesha Christmas parade, killing six people and injuring dozens more. Brooks had been in jail accused of injuring the mother of his child with the same vehicle. He later was accused of intimidating her from his jail cell.
Brooks’ case spurred another go at bail reform.
Under the proposed amendment, judges would be able to consider the “totality of the circumstances” — including “the seriousness of the crime, previous convictions of the accused, the probability that the defendant will appear in court, the need to protect the community from serious harm, the need to prevent witness intimidation and potential affirmative defenses” when setting cash bail.
The proposal passed last session and is on a fast track this session for a second vote. Passage this month could mean the question would go before voters by Wisconsin’s April election, which features a critical state Supreme Court race.
A similar resolution died in the Senate in 2018.
The Wisconsin State Public Defender’s Office opposed that measure, arguing the changes defy due process and other protections under the U.S. Constitution. Expanding conditions for pretrial release are appropriate but not for setting cash bail, the defense lawyers said. Low-income defendants disproportionately would be much less likely to meet higher cash bail set through expanded conditions, the office said in public testimony before a legislative committee in 2018.
Wisconsin, unlike many states, requires defendants pay the full amount of their bail before release as opposed to putting up a portion under a bail bondsman system.
“The State Public Defender is concerned that these changes will result in a significant increase in the number of people detained pretrial who are presumed innocent and do not pose a serious risk to the community,” the testimony stated.
Sponsors of the initiative say it’s about protecting the public, making sure that dangerous people aren’t on the streets.
Duchow said it will be up to the Legislature to sharpen the loose language of bail statutes, including expanding the definition of “serious bodily harm” to include rape and child molestation.
The lawmaker said she’s confident the measure will pass for a second time in the Legislature — and soon — and that Wisconsin voters will approve it.
“People look at me like I’m crazy when I tell them the courts don’t already do this,” Duchow said of the proposed provisions for bail.
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M.D. Kittle is a senior reporter at Wisconsin Spotlight.
Photo “Cindi Duchow” by Representative Cindi Duchow. Background Photo “Bail Bonds” by Ajay Suresh. CC BY 2.0.
