A tale of two tragedies: How Wisconsin is sidestepping key recommendations in push for bail reform

MADISON — In Wisconsin, bail reform has more than once begun with heartbreak.

In the late spring of 1979, 22-year-old Joanne Esser of Mount Pleasant was driving her Volkswagen to her family’s summer cottage up north in Pelican Lake when James Stawicki, 23, forced her car off the road.

She was found dead, stabbed at least 19 times. The Journal Times reported Stawicki told police what happened: after ramming his truck into her car, he used a knife to force her into his car before driving her to the spot where he raped and killed her. He was convicted and sentenced to life behind bars.

At the time of Esser’s murder, Stawicki was already facing charges in Milwaukee County for first-degree sexual assault and false imprisonment. He was free after paying $900 of a $9,000 cash bond–allowed under state law at the time. He had also been previously convicted of armed robbery a year before he murdered Esser.

Two years later, Esser’s parents successfully completed an aggressive campaign to tighten Wisconsin’s bail laws: In 1981, voters approved a constitutional amendment referendum. An overwhelming 73% majority of voters agreed to change Wisconsin’s constitution, an amendment billed as allowing the most dangerous felons to be held without the option to post cash bail or be released at all if they were a public risk.

More than 40 years later and in the wake of another tragedy, two lawmakers who are pushing successfully for another change to bail reform in Wisconsin’s constitution say that clause has never been used.

But, despite legislative recommendations to the contrary, their change won’t fix that.

‘It’s unworkable’

In theory, the clause written into the constitution in 1981 gave judges and court commissioners the option to not release a violent felon at all, if their public danger was deemed high enough. The system, used by the federal government and practice by a handful of states, is known as preventative detention.

In reality, as critics at the time warned, the wording and mechanisms of the clause has made it impossible to practically use.

“It’s unworkable,” state public defender Kelli Thompson explained. Courts would use it if they could, but lawmakers and multiple legislative experts say they never have.

“It has been totally ineffective. There have been zero times that it’s actually been used,” Sen. Van. H. Wanggaard (R-Racine) said. He’s one of the two Republican lawmakers behind the latest push to change how bail is applied under the state constitution by expanding the use of cash bail.

But the 1981 constitutional amendment did, in fact, make a different kind of sweeping change to how bail was handled in Wisconsin. While one clause has been ineffective, another clause imposed a key restriction on how courts could impose cash bail: amounts could only be set based on what was needed to get them to return to court.

Today, Wisconsin’s current bail system handles the public risk not through cash bail amounts, but rather through conditions of release: for example, limitations on who a person can see, what they can drink, what weapons they can have access to, or where they can go.

Tragedy before change

What many Republican and some Democratic lawmakers have now passed is a constitutional change to partially reverse Wisconsin to a pre-1981 system: it would allow courts to consider, among other things, a violent offender’s public risk when deciding how high to set their cash bail.

“Judges will not only have the ability, they’ll have the responsibility and the accountability to look at those things,” Sen. Wanggaard said. “It can’t be blown off. And where they want to do it but they can’t, they’ll now be able to do a good, thorough job.”

Rep. Cindi Duchow (R-Delafield) first introduced that amendment in 2017, prompted in part by another tragedy: a sexual predator in her district who confessed to molesting his grandchildren–and was later convicted–but was released on a $75,000 cash bond while waiting for his day in court.

“Residents of the neighborhood were reasonably concerned for the safety of the community, particularly because there was a school bus stop at the end of his driveway,” Rep. Duchow testified in a public hearing for her re-introduced amendment this year.

For a few years, her amendment failed to clear the full legislature. But tragedy struck once again in late 2021; Darrell Brooks is facing multiple murder charges for tearing his red SUV through crowds gathered in Waukesha for their annual holiday parade, killing six and injuring dozens more.

He was free on a $1,000 cash bond, which Milwaukee County district attorney John Chisolm later called “inappropriately low” and launched an internal investigation into how the amount was set.

While lawmakers say the Waukesha tragedy isn’t the reason for the amendment, the killings have put the issue of tightening Wisconsin’s bail laws once again in the limelight–and this time, like in 1981, prompted serious action. An amended version of Rep. Duchow’s bill has passed both legislative chambers in the first of a 3-step process towards ratification that voters must ultimately approve. Lawmakers hope that could happen as soon as early 2023.

Yet this new change wouldn’t fix the unused clause of 1981: it wouldn’t give judges the option of stopping the most dangerous accused criminals from having any option of release.

Instead, it expands what opponents call a flawed system that relies on a person’s wealth when deciding their danger to the public.

Legislature’s own recommendations left behind in current amendment

When Rep. Duchow first introduced the change in 2017, a legislative study group began a comprehensive study of the state’s bail and pretrial detention laws before moving forward with significant changes.

For six months, lawmakers from both sides of the aisle and stakeholders from the criminal justice community–prosecutors, public defenders, judges, legal experts–met to research and discuss how to best fix the state’s bail and pretrial detention systems.

Rep. Evan Goyke (D-Milwaukee) was a member of the committee. “Broadly, the committee was looking at, ‘How do we fix state law to hold violent dangerous people in custody, and prevent holding low level non-violent people in custody through the use of cash bail?'”

One of the core recommendations that came out of the group’s work: a recommendation to fix the 1981 constitutional clause that tried and failed to allow courts to hold violent criminals behind bars with an option for release. It was just a matter of deleting and fixing some words, Rep. Goyke said.

The amendment, introduced as a result of the group’s work, died in committee and so far has not been reintroduced. The current constitutional amendment that has now cleared both chambers of the legislature sidesteps the clause entirely.

“The legislature is doing the opposite of what this committee and the experts that were on the committee have recommended and pushed for,” Rep. Goyke said.

Sen. Wanggaard, an author on the senate version of the current constitutional amendment, chaired that legislative study committee in 2018. He pushes back on the idea that the recommendations have been dropped, despite neither the constitutional amendment nor the three pieces of legislation that the group wrote making it out of committee or getting reintroduced in a later session.

He pointed to other criminal justice reform efforts and bail-related legislation in the legislature.

“We’ve had the Covid issues which have exasperated problems with backups and stuff like that. All the stuff now is on the table,” Sen. Wanggaard said. “Trying to get a consensus from everybody on how we should fix simple things can sometimes take a really lengthy time. I’ve worked on legislation that’s taken eight years before it finally got approved and went through both houses.”

Unintended consequences: Preventative detention and the argument against expanding cash bail

What some within the criminal justice system want to fix is not just a mechanism within the law to allow preventative detention, but to fix the state’s entire pretrial detention system in a data-informed way that doesn’t overly rely on cash bail or impact some groups of people more heavily than others.

“You and I are charged with the same crime,” Thompson said. “Let’s say we’re both given $10,000 cash bail, you can post it, I can’t. Somehow you’re less risky than myself because you posted $10,000 cash bail? We’re using someone’s means. A poor person isn’t more risky because they can’t post that cash bail.”

An over-reliance on cash bail, she argues, destabilizes the community that it’s meant to protect when low level offenders are behind bars without an ability to maintain their job, their families, or their community connections. The data, she says, backs her up–pretrial detention doesn’t correlate with safer communities.

One frequently-cited study from the Laura and Arnold Foundation analyzing more than 150,000 defendants in Kentucky found high correlations between detaining low and moderate-level suspects and higher rates of new criminal activity, after even just a few days of incarceration.

Closer to home, another study in Milwaukee County presented to the 2018 legislative study committee found 98% of people released to supervision before trial didn’t commit new crimes. A study cited in a 2018 report on bail in Wisconsin from the National Association of Criminal Defense Lawyers found people detained over the entirety of their pretrial period were over four times likely to be sentenced to jail at the conclusion of their case.

Like in 1981, hasty changes could come with unintended consequences.

“I think the consequences of knee-jerk reactions sometimes are worse than what we’re trying to solve with them,” Dane County district attorney Ismael Ozanne noted. He doesn’t advocate for a total removal of cash bail as an option, but has run his office for years in a way that tries to minimize its role. In 2018, a Dane County study found 81% of defendants were released on signature bonds between 2012 and 2016, a release that only requires a defendant to pay if they don’t return to court or break their release conditions.

“It’s difficult to know how best to do this,” he said in a wide-ranging interview discussing cash bail reform. “Our system that we have right now is imperfect.”

But like others working within criminal justice on a daily basis, he says the pending constitutional amendment doesn’t get to the heart of the issue–not in a way that preventative detention could, the 1981 clause that wasn’t written to work.

“We’re trying to legislate towards these very serious cases, which I understand,” Thompson said. “But then we should be looking at what the federal system does and has success in.”

Statewide consistency of bail practices remains out of reach

University of Wisconsin Law School (now-retired) Professor Michele LaVigne conducted an informal poll in 2017 in partnership with the state public defender’s office, finding anecdotal evidence that local customs, courthouse culture, politics and current events all drive widely-variant bond decisions from county to county.

“An official in one county may believe ‘living in Milwaukee’ necessitates release only upon cash despite Milwaukee being a short drive away,” an author noted in a study of Wisconsin bail from the National Association of Criminal Defense Lawyers that included the poll findings. “In other, more distant counties, an official may determine that living in Milwaukee is a factor militating in favor of release because of the ease of interstate travel.”

A separate study that looked at five years of data from 2009-2013 found similar discrepancies. In 100,000 cases between 2012 and 2013, some counties released people arrested for non-violent misdemeanors without cash bail at twice the rate of other counties.

“Bail is used differently in every single courtroom, and it’s used differently in courtrooms right next to each other, and in different counties,” Thompson said. “So some individuals will be held on what we would look at as non-violent, less serious cases–they’re held on cash bail.”

Other recommendations from that 2018 legislative study group include fixes to pretrial detention already underway in some counties. Both Dane and Milwaukee Counties use risk assessments as a third-party recommendation to setting cash bail and release conditions–a type of assessment that makes release recommendations based on a person’s criminal history and other factors. Other counties in Wisconsin are involved in similar pilot programs, but their widespread use remains unlegislated.

Ultimately, when reflecting on how the group’s recommendations stalled, Rep. Goyke said it’s easy to grow cynical about progress–whether as an onlooker or a lawmaker.

“It’s really hard in today’s politics to take something really complex like bail and pretrial detention and create the political will behind it and engage in what is a multi-year effort to change state law.”

Photojournalists Lance Heidt and Brian Mesmer contributed to this report.