Buting ,Williams & Stilling ,S.C. | A Criminal Defense Law Firm

Call Today for a FREE Consultation


Bail measure passes legislature, will become ballot question

by | Jan 27, 2023 | Criminal Defense

Recently, the legislature passed a measure to change how bail is determined in Wisconsin. It has passed twice in consecutive legislative sessions, which means that it will now head to our April ballot as a constitutional amendment.

How bail is determined is critically important. Historically, bail has too often been set for far more than average people and their families can pay. This gives people an impossible choice: stay in jail for months or even years awaiting trial or plead guilty just to get their cases resolved.

Pre-trial detention causes real harm, especially to over-charged or innocent people. Those who can’t make bail typically lose their jobs, often their housing and sometimes their kids. They also spend more time incarcerated after conviction than those who make bail.

According to statistics, pre-trial detention falls most heavily upon the poor and people of color. Wealthy defendants can easily make bail.

Many states are considering bail reforms to reduce the disparate effect on poor people. Wisconsin’s measure does not follow this national trend.

Ideally, a fair bail system would require judges to provide due process when setting bail and take into account many factors, including the possible dangers but also mitigating factors. Judges would ideally remember that our constitution considers people innocent until proven guilty in a court of law.

Wisconsin’s proposed amendment would require judges to focus on all relevant factors when setting bail, not just on setting a cash bail amount that will motivate the defendant to return for their court hearings. The relevant factors, according to the proposed amendment, include:

  • whether the person might fail to appear in court
  • whether the person is accused of a violent crime
  • whether they have a prior conviction for a violent crime
  • whether they pose a risk of “serious harm” to the community
  • the need to prevent witness intimidation
  • any potential affirmative defenses of the accused

That sounds fair enough, but it ignores other mitigating factors.

The proposed amendment was provoked in large part by the fact that Darrell Brooks, who was convicted of killing six people by driving through a 2021 Christmas parade in Waukesha, was out on $1,000 bail at the time.

As too often happens, a particularly aggravated case causes politicians to grab headlines by changing the law for everyone. In truth, no one could predict an individual charged with a crime like Brooks would drive through a parade route and kill and injure multiple people. Setting a high bail to prevent his release pretrial would have been unlikely even under this new law.

This change may have little practical effect. Some judges already set bail far higher than is necessary to motivate a defendant to return to court, essentially imposing preventive detention for those defendants even though they are presumed innocent.

Wisconsin has always had a separate statute that allows preventive detention in very serious cases, but it has rarely been invoked. Instead, prosecutors recommend – and most judges impose – very high bail that has the same effect of keeping the defendant incarcerated pretrial. so this amendment will probably change little.

In fact, legislative leaders cynically know this, but they are pushing the amendment onto this April’s ballot to create larger voter turnout for a critical state supreme court election.

That is no way to affect public policy changes in our criminal justice system. The number of yearly U.S. jail admissions has doubled over the past three decades, even as crime rates have fallen. We can’t keep incarcerating so many people before trial or the premise of innocent until proven guilty means nothing.

Practice Areas

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)