Cash bail: How it works in Wisconsin and the proposed changes explained

Cash bail: How it works in Wisconsin and the proposed changes explained

MADISON, Wis. (CBS 58) -- With Darrel Brooks' trial underway, cash bail is back in the spotlight and has emerged as a key issue in the U.S. Senate race.

In November, Brooks was arrested and accused of killing six and injuring dozens during the Waukesha Christmas parade. Prior to his arrest, Brooks was released on $1,000 cash bail, an amount Milwaukee County District Attorney John Chisholm called "inappropriately low" in the days following the tragic event.

After the parade attack, the debate over cash bail turned into a campaign issue. Republican Senator Ron Johnson and his allies are airing a series of political ads portraying his opponent, Democrat Mandela Barnes, as being "soft on crime" for supporting legislation to eliminate cash bail and tying his views to the Waukesha parade incident and crime in Milwaukee.

UW-Madison Law Professor Adam Stevenson said these advertisements can be misleading because most states that enacted laws to end cash bail still allow judges to consider whether a defendant should be held in custody if they pose a risk to the community.

However, Wisconsin laws currently do not allow commissioners to consider the severity of the crime, such as public safety, when determining bail amounts.

"Cash bail has a very limited purpose to ensure an individual appears back in court," Stevenson said.

In some circumstances, prosecutors can argue someone should be held in custody without bail if they're determined to be a threat to the public, but it's a complex process Stevenson said is hardly ever used.

"The process for that pretrial detention option is fairly difficult," said Stevenson. "Generally speaking, those are very limiting and the time frame in which actions need to be taken are tight and small."

When Barnes served in the state Legislature, he supported a 2016 bill to eliminate cash bail which included a provision to allow judges to hold a defendant if there's evidence the individual poses a risk to the community. The campaign ads targeting Barnes' opposition to cash bail does not include this detail and instead characterizes his stance as "setting accused criminals free into the community before trial."

In an interview, Barnes called the political ads "disgusting" and said they "misrepresent" his views.

"The commercials they are running are disgusting," Barnes said in a September interview. "They are lies, and they misrepresent the facts of the situation and the issues of cash bail. The plan I proposed, the person in Waukesha wouldn't have got out if he paid $1,000 or $100,000."

The Democrat claiming his plan would have kept the Waukesha suspect Darrell Brooks behind bars was rated "mostly true" by Politi-Fact.

The proposal Barnes supports to reform the bail system is similar to the federal system which doesn't use cash bail.

State Rep. Evan Goyke, a Democrat from Milwaukee and former state public defender, said he believes it's a mechanism that works well to ensure defendants are held if they pose a flight risk or danger to their community, instead of the current system that sets a price some can pay, and others can't.

"The design of this system is to make sure people who pose a risk are in custody and held without the ability to buy their way out of jail," Goyke said. "In many ways this system would be tougher on crime because if an individual is held in custody on a pretrial detention order,  they can't get out no matter what."

The debate over bail reform has been a longstanding issue at the state Capitol, and only intensified in wake of the Waukesha parade tragedy. Republicans and Democrats have proposed new bail laws, but finding a solution both sides can agree on has produced some challenges.

In February, lawmakers approved a constitutional amendment to allow judges to consider the severity of the crime when setting bail. It passed with bipartisan support and must be approved by lawmakers next session before the measure is considered by voters.

Goyke voted against the proposal because he believes it would create an unfair justice system because it could lead to judges setting higher bail amounts that can be paid by the rich and not the poor.

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