The most frequently made bail argument by the prosecution, and one that does have an intuitive appeal, is that “the serious nature of this offense and the need to protect the community requires cash bail in this case.” But do facts support this intuitive assumption? Examination of intuitive beliefs is important since intuition at one time indicated the world was flat and the sun revolved around the earth. No amount of intuitive belief, however, changed the facts that we now know to be the opposite.
One recent study of state practice, focusing upon a sample of felony cases filed in the 75 most populous counties during a single month, provides an especially revealing answer to this question. Reaves & Perez, Pretrial Release of Felony Defendants, 1992, Department of Justice, Bureau of Justice Statistics Bulletin 1, 4 (Nov.1994). The study concerned felony cases filed during the month of May 1992 and Milwaukee, Wisconsin was one of the counties studied.
According to this study of felony defendants released prior to case disposition, 3 out of 4 made all scheduled court appearances. Logically, whether a felony defendant released on a case is a danger to the community is measured by the percent of those rearrested while released on bail. Only approximately 14% of released defendants were rearrested for an offense allegedly committed while on pretrial release, 10% for a felony. Thus, not even 25% of the released felony defendants reoffended while released on bail, with only 10% for a felony. As for the 37% of felony defendants who were detained until disposition of their case, 5 out of 6 had bail set but were unable to secure their release, while the remainder (17% of detained defendants and 6% of all defendants) were ordered held without bail. As for those held on bail, the median bail amount was $10,000 (as compared to a median of $3,500 for released defendants).
The long-term implication of how high cash bail served as a coercive method to resolve a case was also found in this study. The median time from the original felony arrest to adjudication was 118 days for released defendants and 46 days for those detained; the felony conviction rate for detained defendants was 70%, compared to 45% for released defendants, and upon conviction 87% of detained defendants (as compared to 51% of the released defendants) were sentenced to incarceration.
Likewise, an earlier study found that individuals charged with the most serious offenses had the lowest tendency to jump bail. S.H. Schaffer, Bail and Parole Jumping in Manhattan in 1967, 25-28 (1970). Further, imposing cash bail based solely upon the nature of the offense involves some element of wealth discrimination. ABA, Standards for Criminal Justice, Commentary to Standard 10 - 2.2 (c) (1988). Unfortunately, actual experience demonstrates that felony court judges actual bail decisions are almost exclusively determined by the district attorney's recommendations, which are based primarily on the severity of the crime charged. See, Ebbesen and Konecni, Decision Making and Information Integration in the Courts: The Setting of Bail, 32 J. Personality and Social Psych. 805 (1975).
The Eighth Amendment states that "excessive bail shall not be required." U.S. CONST. amend. VIII. Bail becomes excessive when a court sets it higher than reasonably necessary to ensure a defendant's appearance at trial. See Stack v. Boyle, 342 U.S. 1, 5 (1951) ($ 50,000 bail excessive because defendants were charged with violation carrying maximum penalty of 5 years and $ 10,000 fine and government's only justification for bail was that 4 unrelated prisoners charged with same offense had previously forfeited bail); see, e.g., U.S. v. Beaman, 631 F.2d 85, 86-87 (6th Cir. 1980) ($400,000 bond was excessive because not necessary to ensure defendant's appearance at trial); U.S. v. Leisure, 710 F.2d 422, 425-26 (8th Cir. 1983) (bail over $ 1,000,000 excessive in light of facts that defendants had lived in the area for many years, had family in the area, had real property and employment in the area, and had no record of prior failure to appear in court). The Supreme Court has indicated that the Excessive Bail Clause "has been assumed" to apply to the states. Baker v. McCollan, 443 U.S. 137, 144 n.3. (1979); see Schilb v. Kuebel, 404 U.S. 357, 365 (1971). Three circuits have expressly held that the Excessive Bail Clause applies to the states. See Sistrunk v. Lyons, 646 F.2d 64, 71 (3d Cir. 1981) (Excessive Bail Clause integral to ordered liberty and binding on states through 14th Amendment); Pilkinton v. Circuit Court, 324 F.2d 45, 46 (8th Cir. 1963) (Excessive Bail Clause applies to states through 14th Amendment); Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983) (per curiam) (same).
Likewise, Article 1, Sec. 8(2) of the Wisconsin Constitution, and Secs. 969.01 and 969.08, Wis. Stats., “monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.” Otherwise, either no bail or a personal recognizance bond is required. Thus, where there is no risk that an defendant will not appear for further proceedings, the imposition of cash bail as a condition of release is inappropriate. State v. Taylor, 205 Wis. 2d 664, 673, 556 N.W.2d 779(Ct. App. 1996) (regarding bail pending appeal). If monetary conditions of release are used for reasons other than to assure appearance in court, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Stack v. Boyle, 342 U.S. at 4; State v. Braun, 100 Wis.2d 77, 86-7, 301 N.W.2d 180(1981); Mulkovich v. State, 73 Wis. 2d 464, 477, 243 N.W.2d 198(1976). In a separate opinion in Stack, Justice Jackson (joined by Justice Frankfurter) explained that a trial judge’s discretion in setting bail “is not free to make the sky the limit.” Id. at 8 (Jackson, J., joined by Frankfurter, J.).