Republican lawmakers may try to resurrect bail bonding
Madison – Two years after lawmakers unsuccessfully tried to enlarge the state budget by creating a privately run bail bonds system in Wisconsin, the controversial idea could be returning.
Last time, the bipartisan group of opponents included the state’s judges, prosecutors, defense attorneys, sheriffs and clerks of court – virtually the entire legal system. Gov. Scott Walker ultimately killed the idea by vetoing it in June 2011.
Today, the same groups seem poised to fight the plan, with a few exceptions such as Milwaukee County Sheriff David A. Clarke Jr.
Nevertheless, powerful Republican lawmakers in the state Assembly are determined to give it another hearing.
Assembly Speaker Robin Vos (R-Rochester) said allowing bail bondsmen would increase the number of people who show up at their court date and reduce costs for the court system, making it a good proposal to put back into the state budget.
“Why wouldn’t we?” he said. “I think if (46) other states have a (bail bonds) system with a higher show rate, that’s something we should emulate, not run away from.”
Supporters of the proposal, led by the American Bail Coalition, said that bondsmen would make government more efficient by ensuring more defendants make their court date. They say that’s why nearly every state has some form of bail bondsmen.
Opponents of the bill say it’s an unseemly assault on a forward-thinking justice system that measures a defendant’s risk using objective evidence and that other states ought to be imitating. They say the bail bonds system would harm public safety and crime victims, cost taxpayers, inflate bail, invite corruption and not necessarily get more defendants to court on time.
Short of bowing to political influence, they say, there is no reason for a lawmaker to vote for the bail bonds provision.
But the proposal could have a chance, even with the governor who vetoed it in 2011. In his veto message then, Walker wrote that he agreed with the intent of the provision but felt there had not been “sufficient time to properly evaluate the proposal and to plan for appropriate regulation of this industry.” Spokesman Tom Evenson said Friday only that the governor would “evaluate the budget in its entirety when it comes to his desk.”
The American Bail Coalition has registered to lobby lawmakers on the budget bill, hiring prominent Capitol lobbyist Eric Petersen, who also does work for a rent-to-own corporation, a title loan company and tobacco interests as well as other companies. Neither the Bail Coalition nor Petersen responded to requests for comment.
Sen. Alberta Darling (R-River Hills), co-chairwoman of the Joint Finance Committee, said she’s hoping to avoid a repeat of the late Friday night session in 2011 when a larger motion with the bondsmen provision unexpectedly appeared on one of the last votes her panel took on the budget. If the proposal is so positive, it can and should be passed as a separate bill, she said.
“I’ll do everything I can to keep that out of the budget,” Darling said.
Darling, who actually voted for the larger motion with the bail bonds provision in 2011, likely won’t have to fight the proposal alone. Democrats oppose it, and two Republicans currently on the Joint Finance Committee, Sens. Glenn Grothman of West Bend and Joe Leibham of Sheboygan, also voted against it two years ago.
‘Can I make money?’
Wisconsin hasn’t had a bail bonds system since 1979, and most leaders within the state’s justice system want to keep it that way.
Under a bail bonds system, criminal defendants waiting for trial could use a bondsman to cover their bail and pay only a percentage – say 10% – of the total.
Like many others on the bench, Milwaukee County Chief Judge Jeff Kremers believes elected judges, not businesses, are better placed to decide whether potentially dangerous accused criminals go back on the streets.
“Now the decision is no longer up to a judge, it’s up to some insurance type person who’s thinking, ‘Can I make money on this release?’ ” Kremers said, adding that the bondsmen system “doesn’t tell us anything about how dangerous (defendants) are. It just tells us how much money they have or their family has.”
Kremers worked under the old system in Wisconsin as a prosecutor. In contrast today, Wisconsin judges use numerous factors and a complicated points system to measure whether a defendant is a flight risk or a danger to the public, he said.
Kremers emphasized that he hasn’t taken a position on any forthcoming proposal, since he hasn’t seen one yet. But two years ago the committee of chief judges from all over Wisconsin opposed the previous measure, he said.
Failure-to-appear rates for defendants accused of felonies in Milwaukee County are 16% or less, which compares favorably with other states that have bail bondsmen, Kremers said. A March Wisconsin Policy Research Institute report written in favor of bail bondsmen found that failure to appear rates nationally for felony defendants are about 25%.
But the report by WPRI, a conservative think tank, also found that bondsmen can use sophisticated methods and greater resources than those otherwise available to keep failure-to-appear rates lower than under other forms of cash bail system.
Adam Gerol, the Republican district attorney of Ozaukee County and president of the Wisconsin District Attorneys Association, said his organization strongly opposed the bail bonds provision advanced in 2011. Milwaukee County District Attorney John Chisholm, a Democrat, was among that group of outspoken district attorneys two years ago.
“It injects an element of unpredictability into the justice system that the courts have no control of,” Gerol said.
Judges consider someone’s ability to post bond when they set bail. But now judges would have to take into account that the person might be able to post a significantly lower amount with a bail bondsman. That situation could make someone less likely to show up to court, he said.
Mike Witt, president of the Wisconsin Association of Criminal Defense Attorneys, said the fact his group is lining up with prosecutors shows what a bad idea a bondsmen system is.
“The only people pushing this are the industry themselves,” Witt said.
Witt said the bondsmen proposal would hurt criminal defendants by inflating bail since judges would feel pressure to jack up the bail to account for the fact that defendants might only have to pay a small percentage of it to go free.
But Joint Finance Committee co-chairman John Nygren (R-Marinette) said he sees good reasons why the proposal should come back. He and Vos shrug off criticism of the idea, with Vos saying that it’s typical to hear such comments from “defenders of the status quo.” The two Republicans said technology and society have changed considerably since bail bondsmen were banned in Wisconsin three decades ago.
Van Hollen silent
Today, bail for defendants is set by a judge and paid to the county clerk of courts or sheriff and is meant to ensure that defendants don’t abscond before their trial. If the defendant shows up to court and is acquitted, the money is returned to him or her. If he or she is convicted, the money is used to pay fines and other fees.
If the defendant doesn’t show up in court, the bail money is forfeited. In Wisconsin, it goes first to pay any needed restitution to victims and then goes for covering costs for the local courts system that would otherwise be covered by county property-tax payers.
But if bail bondsmen have put up the money for a defendant’s release, they could seek to recoup it from the system even if the defendant is late to court or convicted, said John Barrett, the clerk of Milwaukee County Circuit Court. That’s just one reason why Barrett opposes the idea and why the clerks’ state association opposed the 2011 proposal, said Barrett, who co-chairs the association’s legislative committee.
“I would think it would adversely impact victims of crime,” Barrett said.
State Public Defender Kelli Thompson also opposed the provision in 2011, though she has yet to weigh in on the idea this year. The Criminal Law Section of the Wisconsin Bar Association, which represents over 500 criminal defense lawyers, prosecutors, judges and academics, also opposes the idea.
So far, state Attorney General J.B. Van Hollen, a Republican, hasn’t weighed in on the issue and didn’t provide comment for this story.
Dane County Sheriff Dave Mahoney, a Democrat, doesn’t want to see bail bondsmen operating in his county. Mahoney says he can remember several times over the last two decades in which deputies responded to a report of a kidnapping in his county only to find that it was a bail bondsman from another state grabbing a defendant.
Mahoney said bondsmen lack the standards of law enforcement officers or even any standards at all that he could discern. The state sheriff’s association opposed the proposal in 2011 and will meet soon to consider that position, he said.
“I’m most concerned about these untrained bondsmen coming in,” Mahoney said.
Milwaukee County Sheriff Clarke said that’s nothing more than “alarmist rhetoric.”
“I find that totally disingenuous,” Clarke said. “If we can allow a criminal defendant another means to make his bail, what do I care?”