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The Solution to Pre-Trial Release: More Information, Please

Determining bond and conditions of pre-trial release is a relatively simple, straightforward process in Wisconsin.  After arrest and a short meeting with an attorney, a magistrate will determine bail.  Bail consists of two parts – monetary and non-monetary.  The state constitution is clear that the monetary component is to be used to ensure future appearance, and the non-monetary component is to prevent future law breaking.  With few exceptions, the courts may not simply deny bail.  Bail hearings, traditionally, have been very short and based on generally the same information.  The courts have wide discretion when applying the factors and setting bail. Two new and interesting approaches are taking shape in Wisconsin regarding pre-trial release policies.  Both are good indications of conservative criminal justice reform taking root.

The first approach is that the Legislature is trying to require courts to consider the potential for reoffending and the seriousness of the offense when deciding the monetary component.  One proposal seeks to amend the state constitution to include this requirement and expands the crimes for which bail can be denied.

The second approach is the expansion of using risk assessment tools when determining bond.  With the assistance of the State Criminal Justice Coordinating Council, six counties completed a pilot program and are currently considering expanding its use to other counties.  Other counties, like Milwaukee, are not waiting for assistance from the state and have been implementing the use of risk assessment tools.  This gives the courts a better understanding of the potential risk each person presents by using aggregate data.  The hope is that in the end the court will make more informed decisions that both protect the public and prevent unnecessary pretrial detention.

Despite the different approaches, the two ideas share one common characteristic: the desire for the court to have more information before making a decision.  The hope is that by adding more information the wide discretion granted to the courts will be exercised better.

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