Pre-Trial Release: Bond and Bail 101 in Wisconsin

What is bond or bail? What is cash bail?

As Wisconsin criminal defense and trial attorneys, people contact us all the time with questions about bail or bond, terms which are used almost interchangeably in Wisconsin. The judge set cash bail too high and they can’t post the amount. They want to get out of jail, naturally. What can be done? Or they are out of jail but the judge ordered conditions of release (“bond conditions”) that are disrupting their lives. What can be done?

In Wisconsin, after someone has been arrested he or she is eligible for release under “reasonable conditions” that are designed to do three things: 1) assure the defendant’s appearance in court; 2) protect members of the community from serious bodily harm; 3) prevent the intimidation of witnesses.

Bail, or monetary conditions of release (often referred to as “cash bail”), may be imposed only if the court finds that, as the statute reads, “there is a reasonable basis to believe that bail is necessary to assure appearance in court.” The statute also says that “the judge shall first consider the likelihood of the defendant appearing for trial if released on his or her own recognizance.”

How is cash bail set?

What does all that mean? What factors does a judge take into account before deciding whether to impose cash bail? How does a judge evaluate “the likelihood of the defendant appearing for trial”? Perhaps the most common factors the judge will consider are where the defendant lives, whether there is a history of missed court appearances, and the gravity of the charges.

If a defendant lives in the area and has strong ties to the community, the belief is that the defendant will be less likely to flee from the charges. If you’ve lived in the town where you’re charged with a crime for fifteen years, are married, own a home, have children who attend school in town, and have a job in the area, the logic is that you have many factors that tie you strongly to the community, and make it less likely that you will run from the charges or otherwise fail to show up for future court dates. Conversely, if you’re charged with a crime in Dane County, but you live in another state, you have far fewer ties to Wisconsin and the logic is that you may return to your home state and refuse to come back to answer to the charges against you.

Next, the court will likely consider a defendant’s criminal history, including whether there is a history of missing court dates in the past. Somebody with a long criminal history is more likely to get cash bail than somebody with no criminal history. Somebody who has missed court dates on three occasions in the past is very likely to get cash bail. Why? Cash bail is intended to assure that a defendant shows up for future court dates; if you’ve missed court dates in the past, you’re a higher risk to do so again in the future.

The more serious the charges, the more likely the court is to impose cash bail. Why? The more serious the potential consequences a defendant faces, the more likely the defendant is to flee or otherwise try to avoid court to face the charges. That’s the logic.

What happens if the court orders cash bail? What can I do about it?

By law, cash bail is to set only “in the amount found necessary to assure the appearance of the defendant.” The court is also required by statute to consider the ability of the defendant to post cash bail.

If you are criminally charged and the court imposes cash bail and you cannot post that amount of cash bail, you will sit in jail either until your case resolves or until the court lowers your cash bail. How can you get cash bail lowered? Your attorney can file a bond modification motion asking the court to review and lower the amount of money required for you to post. It is certainly not guaranteed that the courtwill lower your cash bail in response to a motion, but an effective Wisconsin criminal defense attorney can talk with you, identify the facts most favorable to you, file a motion, and argue on your behalf to the court.

If the court decides cash bail is not necessary in your case, you will be released on a signature bond, meaning that you are simply required to sign a bond form acknowledging what your bond conditions are before you are released.

What are bond conditions?

Bond conditions are the conditions the court sets that a defendant must adhere to while the case proceeds. Different types of cases have different conditions that are common. For example, defendants charged with OWI in Wisconsin will commonly be ordered not to operate a motor vehicle with any alcohol in their system, or within some number of hours after consuming alcohol, or even not to drink at all. Defendants charged with crimes of domestic abuse or violence in Wisconsin will commonly be ordered either not to have any contact with the alleged victim or not to threaten or commit any additional acts of violence against the alleged victim. Any case that includes allegations that the defendant was drinking or on drugs will commonly result in an “absolute sobriety” condition, meaning the defendant cannot consume any alcohol or any type of illegal drug. Any case involving weapons allegations will commonly result in the defendant being ordered not to possess any type of weapon.

If the bond conditions ordered in your case are onerous and causing real problems for you, an experienced Wisconsin criminal defense attorney can file a bond modification motion asking the court to alter your bond conditions.

What do bond conditions mean for me?

What is the significance to the defendant of the bond conditions? If you don’t adhere to those conditions, you can be charged with additional crimes-Bail Jumping, either misdemeanor or felony. Adding more charges to whatever you were already facing can have a very negative effect on the outcome of your case. And Bail Jumping is often a very easy charge for prosecutors to prove.

But the very best way to avoid cash bail, or to avoid very high cash bail, and to avoid conditions that are going to cause you or your family serious problems is to consult with an attorney before your bond conditions are imposed. In Wisconsin, bond is typically established at a hearing called the Initial Appearance. The Initial Appearance happens after you have been arrested and is usually your very first court appearance. At the Initial Appearance you are formally told what the charges against you are and bond is then set. If you have been arrested in Wisconsin, call the experienced, aggressive, history-making criminal trial attorneys at Nicholson & Gansner, S.C.before your Initial Appearance.