We’ve experienced a surge in bail jumping charges. What’s behind it, and why does it matter for criminal defendants?
For Wisconsin defendants, few charges cause as much frustration and surprise as bail jumping. Most people recognize that being arrested and charged with a crime comes with serious limits on your liberty, but many don’t recognize that simply violating the conditions of pre-trial release (bail) can lead to brand new criminal charges. Prosecutors often use bail jumping aggressively and some use it as a tool to threaten defendants into pleading guilty. In some counties, it has become one of the most frequently filed criminal charges.
At your initial appearance, a court commissioner or judge determines the rules you must follow while out on bail. Typically these include things like no contact with the victim, no driving without a valid driver license, no use of intoxicating substances, and a requirement to show up to all of your court dates. Not following one of these rules leads to potential bail jumping charges, even if the violation wasn’t a crime itself. For example, drinking alcohol isn’t a crime. Absolute sobriety is a frequent condition of bail. If you’re caught drinking, in violation of this rule, a bail jumping charge could result.
The consequences are serious. Bail jumping is not just a warning or a slap on the wrist, but a separate criminal offense. Getting a criminal defense attorney involved in your case makes a lot of sense. If you’re facing any sort of misdemeanor or felony allegations anywhere in Wisconsin, give us a call. At Van Severen Law Office, S.C., our entire practice focuses on criminal defense. You can reach us 24/ 7 at (414) 270-0202.
Section 946.49 of the Wisconsin Statutes – Bail Jumping
Section 946.49 of the Wisconsin Statutes describes bail jumping. In indicates the following:
(1) Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond is:(a) If the offense with which the person is charged is a misdemeanor, guilty of a Class A misdemeanor.(b) If the offense with which the person is charged is a felony, guilty of a Class H felony.(2) A witness for whom bail has been required under s. 969.01 (3) is guilty of a Class I felony for failure to appear as provided.
- Firstly, the defendant was charged with a misdemeanor or felony; and
- Secondly, the defendant was released from custody on bond; and
- Thirdly, the defendant intentionally failed to comply with the terms of the bond.
- This requires that the defendant had the mental purpose to fail to comply with the terms of the bond. It also requires that the defendant knew of the terms of the bond and knew that his or her actions did not comply with those terms.
What’s left? Wis. Stat. 946.49(2) focuses on witnesses in felony cases that won’t appear voluntarily via subpoena. Those witnesses can be taken into custody, subject to bail, and required to appear for the court date. If that witness doesn’t appear at the later ordered court date, then can be charged with bail jumping. This is a very unique situation, but an important one to consider.
The difference between misdemeanor and felony bail jumping
Whether a bail jumping charge is a misdemeanor or a felony seems to stump a lot of people. Let’s clarify it;
- Defendant is arrested for a misdemeanor. He appears in court and his bail (along with conditions) is set. One of those conditions requires that the defendant commit no new crimes.
- Scenario 1: Defendant is arrested for a new misdemeanor charge. He’ll be charged for that offense, and will also be charged with one count of misdemeanor bail jumping.
- Scenario 2: Defendant is arrested for a new felony charge. He’ll be charged with that offense, and will also be charged with one count of misdemeanor bail jumping. Even though the new charge is a felony, the defendant jumped bail in connection to an underlying misdemeanor charge.
- Defendant is arrested for a felony. He appears in court and his bail (along with conditions) is set. One of those conditions requires that the defendant commit no new crimes.
- Scenario 3: Defendant is arrested for a new misdemeanor charge. He’ll be charged for that offense, and will also be charged with one count of felony bail jumping. Importantly, the defendant violated bail by committing a new crime (even though that crime was only a misdemeanor). Due to the fact that he jumped bail in connection to an underlying felony, he’ll be charged with a felony bail jumping.
- Scenario 4: Defendant is arrested for a new felony charge. He’ll be charged for that new felony offense, and will also be charged with one count of felony bail jumping.
The underlying charge is the only factor that matters when determining whether the bail jump is a misdemeanor or a felony. Don’t be confused by the level of the new charge.
What about rule violations?
What if there isn’t a new crime that leads to the bail jumping?
- When the underlying crime is a misdemeanor, a rule violation will lead to misdemeanor bail jumping charges.
- When the underlying crime is a felony, a rule violation will lead to felony bail jumping charges.
A new criminal charge isn’t required for bail jumping to apply. A rule violation, like we’ll describe in the next paragraph, is enough.
Common scenarios that lead to bail jumping:
Most bail jumping charges arise from relatively common scenarios. They’re all avoidable:
- Missing a court date. Not showing up to court is one of the most common reasons defendants are charged with bail jumping. Missing the bus, not being able to find a ride to court, not being able to find childcare, having to work, and forgetting about the date are all common reasons for missing court. None of them will help you avoid a bail jumping charge.
- Violating a no contact order. If you’re prohibited from having contact with someone as a condition of bail, don’t talk to them. If they reach out to you, don’t respond. If they tell you they’re “dropping the case” (not their decision), it’s not enough. Tell your lawyer. This commonly applies to partners, spouses, friends, witnesses, and co-defendants, but extends to anyone the court prohibits you from having contact with.
- Substance use violations. Absolute sobriety is a frequent condition of bail. This applies to illegal drugs, alcohol, and any drugs that aren’t legitimately prescribed. If a drug test turns up a substance, the government may charge you with bail jumping.
- Failure to comply with pretrial services. If you’re ordered to cooperate with JusticePoint or another pre-trial services program, cooperate. Fighting with staff, not complying with their requests, and skipping meetings with them can all lead to bail jumping charges.
- Breaking curfew or travel restrictions. This isn’t as common, but if you’re ordered to follow a curfew, stay in a specific area, or avoid a specific area, do so or face potential criminal charges.
The controversy regarding these charges:
Bail jumping is the most common criminal charge in Wisconsin. In 2024, prosecutors filed four times as many bail jumping charges as they did in 2000. This is the case even though criminal rates throughout the state have decreased over the same time period. Wisconsin is one of only seven states that allow prosecutors to file additional criminal charges for violating conditions of bail. While some prosecutors have responded by blaming defendants, others believe bail jumping serves as a way to pad prosecutorial numbers. The latter makes a lot more sense, considering the general decrease in criminal charges throughout the state.
Over the last five years, bail jumping charges have been filed about 250,000 statewide. Other states handle bail jumping situations in a variety of ways:
New York law restricts bail jumping charges to situations where people fail to appear in court within 30 days after their assigned court dates. Although New York eliminated cash bail for many cases in 2019, people released before trial are often still subject to court-ordered conditions. Violating those conditions doesn’t lead to new criminal charges, however, unless the person violates a court order to avoid another person. That offense is categorized as criminal contempt of court.
Despite the glossy rhetoric, Wisconsin’s bail jumping laws remain draconian at their core, fueling a quiet explosion of overcrimianlization rather than justice.