– PROFESSOR CALEB FOOTE, JOHN JAY COLLEGE OF
CRIMINAL JUSTICE AND GRADUATE CENTER,
CITY UNIVERSITY OF NEW YORK
The issue of using cash bail to hold a person presumed innocent in jail before trial is a complex issue. Over and over again, the presumption of innocence in favor of the accused has been called "axiomatic and elementary and its enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432, 453 (1895)" United States v. Salemo, 481 U.S. 739, 790 (1979) (J. Marshall, dissenting). “The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the law.” Weeks v. United States, 232 U.S. 383, 393 (1914). Likewise, Wisconsin law holds that presumptions in favor of moral honesty and innocence are not only “justified in all civilized nations” but by the institutions of social life and by the laws enacted by government. West v. State, 1 Wis. 209, 215 (1853). Any punishment of the due process right to presumption of innocence must pass “close judicial scrutiny.” Williams, 425 U.S. at 503-04; Gaertner, supra.; Whitty, supra. State v. Shumate, 107 Wis. 2d 460, 467, 319 N.W.2d 834, 838 (1982) (quoting State v. Braun, 100 Wis. 2d 77, 86, 301 N.W.2d 180, 185 (1981)) (when setting the amount of bail, a court should not forget about the presumption of innocence).
Those issues have been the subject of countless law reviews, studies, and briefs by attorneys. However, one issue that has not been dealt with that extensively is what happens when a case is over? How is bail money returned?
If a person is found not guilty, any money posted for bail will be returned to the person who posted it in about two weeks after the case is over by the clerk of courts office. There is a
If a person is found guilty, by law, the court MUST apply bond money deposited first towards the payment of any restitution ordered and then to the payment of the judgment. Disbursement of the bond money posted may not occur until the case has been disposed of and may be held up to 120 days after disposition upon a pending order for restitution.
For misdemeanors, Wis. Stat. §969.02(6) explains that when a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (2), the balance of such deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under §973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.
For a felony Wis. Stat. §969.03(4) provides that if a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (1) (d), the balance of the deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under §973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.
If the money deposited by an individual other than the defendant is applied towards restitution, and/or judgment, the recovery of the money by the person who posted is a matter between the parties and not the court.