Of all the measures included in the mammoth budget bill that was recently completed, none is more questionable than a provision that returns commercial bail bonds to Wisconsin. Milwaukee Police Chief Edward Flynn called bail bondsmen "basically legal loan sharks" who "prey on the poorest communities."
No one involved in the state's criminal justice system favors the proposal. In 2011, when Republican legislators unsuccessfully tried to pass this bill, it was opposed by the Wisconsin District Attorneys Association, the Wisconsin Association of Criminal Defense Attorneys, all 47 Milwaukee County judges and all 10 of the state's chief circuit judges, not to mention the Wisconsin Sheriffs and Deputy Sheriffs Association, police chiefs and clerks of court.
To post bail in the 46 states with a commercial system, defendants typically must pay the bail bond company 10% of the bond and lose that money even if they show up in court. So if they can't afford this, they simply end up in jail until their court date. By contrast, under Wisconsin's system, created by law in 1979, the bail of those found not guilty is refunded.
A study by the U.S. Department of Justice found that two-thirds of people in the nation's jails are petty, nonviolent offenders who are there for only one reason, because they can't afford bail and are awaiting trial. It's a modern form of debtors' prison. The cost to taxpayers of this needless imprisonment is $9 billion a year, the department has estimated.
Jefferson County Circuit Judge Randy Koschnick, who ran in 2009 as a conservative against state Supreme Court Justice Shirley Abrahamson, noted that under Wisconsin's current system the bail paid by defendants found guilty often goes into the crime victims' restitution fund. Under the new law, he said, it would go to bail bond companies instead. The proposal would also lead to bounty hunters "kicking down doors to people's houses and arresting them without being sworn police officers," according to Koschnick.
The private bail bond system can also corrupt judges. The higher the bail set by judges, the higher the profit for bail bond companies. Thus, these companies try to elect and influence judges friendly to the industry. "The exploitation of the practice has led to the convictions of judges in Louisiana and Texas," The Capital Times has reported. "And in 2010, a bail bonds bribery case led to the first impeachment of a U.S. district judge in more than two decades."
Globally, it's rare to find a country that uses a commercial bail system. And no one in Wisconsin has called for changes in the current system, which has worked well for 39 years. So why was any change needed?
Assembly Speaker Robin Vos (R-Burlington) and Rep. John Nygren (R-Marinette) argue that commercial bounty hunters help assure defendants show up for trial. But failure-to-appear rates for defendants accused of felonies in Milwaukee County are about 16%, as the Milwaukee Journal Sentinel has reported, while the no-show rate nationally is about 25%, according to a study by the conservative Wisconsin Policy Research Institute. Perhaps that's because bail bond companies get paid regardless of whether defendants show up for trial.
If Vos and Nygren doubted these statistics, they could have easily asked the Legislative Reference Bureau to study the issue and compare Wisconsin to other states. That's what real policymakers would do.
The bill's major supporter is the American Bail Coalition, which represents bail bond companies that profit greatly from the system. The coalition spent $105,000 on lobbying in the 2011-2012 legislative session in Wisconsin and for this session hired prominent Capitol lobbyist Eric Petersen to augment its forces.
The coalition also has support from the American Legislative Exchange Council, a nonprofit with heavy corporate funding (including by the Koch brothers). ALEC's membership includes some 2,000 lawmakers, mostly Republicans, and it pushes a "free market" agenda, writing model bills legislators can then introduce.
The American Bail Coalition's decision to join ALEC in 1993 "pushed the ABC agenda down the road to fulfillment of its objectives," a newsletter (PDF) by the coalition reports, and ABC executive director Dennis Bartlett serves today as a member of ALEC's Private Sector Committee. ALEC's model bail bond bill was the basis for the one introduced in 2011 by Vos, and for the measure that just passed. The new measure will start the new system in five counties, including Dane, and automatically expand statewide in 2018.
The smell emanating from this special-interest legislation was so bad that some Republicans took pains to distance themselves. Sen. Alberta Darling (R-River Hills), co-chair of the Joint Finance Committee, said, "I'll do everything I can to keep that out of the budget," but failed. Sen. Mary Lazich (R-New Berlin) voted for the measure but said she believed Waukesha County judges would choose not to allow private bonds in their cases.
What, then, is the point of creating this system?
Bruce Murphy is the editor of