On Jan. 19, the Wisconsin Assembly gave a final approval to a proposed constitutional amendment that would, they claim, make it more difficult for violent criminals to get out of jail on bail. The proposal will go before voters where it will undoubtedly be ratified in the April 4 election.
The amendment would require a judge to consider a defendant’s potential risk to public safety, including his or her criminal history, when setting bail. According to its proponents, currently cash bail is set only to ensure the person appears in court and does not consider those factors.
As politics, this proposed amendment makes great sense; in real life, it is completely and totally a waste of time and efforts.
Do the proponents really think that a court does not consider a defendant’s potential risk to public safety, including his or her criminal history, in setting bail? Serving as a part-time Milwaukee County Assistant District Attorney assigned occasionally to felony intake court, let me assure everyone that public safety and criminal history are important components of a court’s bail determination. The argument before the court is simple: To the extent that a defendant constitutes a risk to society or has a prior record, the greater risk of the defendant’s non-appearance in court. And guess what? Having made this argument numerous times, I can assure you that the courts get it and very much take these factors into account.
So, while this amendment would do no harm, it is completely unnecessary. Put another way, it makes good politics, but is meaningless for addressing and of the real issues in the criminal justice system.
Now, if the Legislature would really like to improve the operation of criminal courts, I have a couple of suggestions which would be more than politics.
One: Pay defense attorneys enough money that they will take cases. The delays in the system due to a lack of public defenders and private lawyers willing to work for starvation wages is significant and impactful. For more, see: Gregg Herman, Where have all the lawyers gone? Underpaying defense attorneys no way to be ‘tough on crime.’ Wisconsin Law Journal, June 27, 2022.
Suggestion two: Pay district attorneys a living wage as well. Recently, the district attorney of Dodge County resigned, leaving the county with no full-time prosecutors in an office that typically employs six attorneys. No, I’m not asking for more money for myself – I’m in an unusual (and enviable) position in life that I don’t need it. The same is not so for the young prosecutors I work with. They start at approximately the same rate, inflation adjusted, as I started at 40-plus years ago. But there is a huge difference. My law school tuition started at $350 per semester. That is not a typo or missing a number. Rather tuition was so low that student debt was unheard of.
Today it’s very much heard of. And a new lawyer has to eat. The effect is vacancies and constant change over. Or, in the case of Dodge County, no D.A.s at all.
The state currently has a surplus. So here’s my idea: Drop the unnecessary amendment and use the time and efforts to paying lawyers a living wage. That might do something practical as opposed to just politics.