Explaining Bail in Wisconsin

If you are charged with a crime in Wisconsin, your first court appearance is called your initial appearance.  You will be notified of the charges against you and the court will likely set bail.  “Bail” is defined in Section 969.001 of the Wisconsin Statutes as “monetary conditions of release.”

Section 969.01(1) states defendants arrested for a criminal offense are eligible for release to assure his or her appearance in court, protect members of the community, and prevent intimidation of witnesses.   Further, the judge shall first consider the likelihood of the defendant appearing for trial if released on his or her own recognizance.

A personal recognizance bond, or signature bond, allows a defendant to be released without first paying money.  The defendant is still subject to specific conditions of release if imposed by the court, such as restrictions on travel or place of residence and prohibiting the defendant from possessing dangerous weapons.

Cash bond requires the defendant to pay the cash amount prior to being released from custody.  Section 969.01(4) states that if bail is imposed, it shall only be in the amount necessary to assure the appearance of the defendant.  However, the court may impose non-monetary conditions of release for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses.  These considerations include:

  • Ability of the arrested person to give bail;
  • Nature, number and gravity of the offenses and potential penalty the defendant faces;
  • Whether the alleged acts were violent in nature;
  • The defendant’s prior criminal record;
  • The character and strength of the evidence presented to the judge;
  • Whether the defendant is currently on some form of probation or supervision;
  • Whether the defendant is already on bail in other pending cases;
  • Whether the defendant has been bound over for trial after a preliminary examination;
  • Whether the defendant has in the past forfeited bail or violated conditions of release;

Finally, the entire cash dollar amount must be posted before a defendant is released from custody.  This is different from Illinois and other states where the defendant will be released after a percentage of the bail is posted.  Wisconsin also does not have bail bondsmen.

Maryland Court Ruling on Bail

Recently, Maryland’s highest court adopted a rule that required judges to explore alternatives to cash bail to ensure a defendant appears for trial.  The purpose of the rule is to prevent defendants from sitting in jail prior to trial for the sole reason that they cannot afford the monetary bail.  The hope is that poor defendants will have the same opportunity to pretrial release as their wealthy counterparts.

Much like Wisconsin’s rules, the Maryland court must take into account the individual circumstances of each individual instead of issuing a flat bail based on the charges.  The rule encourages courts to impose other non-monetary conditions of release to ensure compliance with court orders and ensure appearance in court.  Again, like Wisconsin, these conditions include pretrial supervision and electronic monitoring.

The rule also recommends holding defendants without bond if they pose a risk to the community or if they are a flight risk rather than issuing high cash bail.  Again, the purpose is to further ensure equal treatment of defendants regardless of economic status.  This part of the rule makes sense, for example, in that poor defendants have no ability to post a $100,000.00 bail on a homicide case.  But a wealthy defendant charged with the same crime may be able to bail out solely based on their economic status.  These two defendants may pose an equal threat to the community and may equally be a flight risk, but the wealthy defendant is released while the poor defendant sits in jail.  Under the new Maryland rule, it is likely that both defendants will now be held without bond – a measure that ensures their appearance in court and protects the community regardless of ability to pay the bail.

If you have questions regarding bail or have an upcoming initial appearance, do not hesitate to contact our attorneys today!

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