A deeper look at who gets stuck in jail pre-trial and how we got here.
This story was produced in partnership with Red Madison.
When the aliens come to Earth, nobody expects them to make first contact in a Dane County board meeting. The tech moderator is calling out names over the Zoom call, activists are talking about spending too much money on a jail, and then the moderating tech chokes on a new name. “Zer-zee… Zidj… Ziglax Liaison? You have three minutes.”
“Greetings, humans. I will keep this brief. I am part of a team of liasons sent to run spot checks around your planet to verify if humans are ready to join the Galactic Society.”
Not many people are listening live. These board meetings are usually deathly boring. But fortunately, the next day, someone digs a video link out of Legistar. We aren’t sure if it was some elaborate prank, but with folks from other cities around the world posting similar clips to social media over the next few days, it becomes clear that the prank was either global, or aliens really visited various municipal meetings all over the planet. Possibly the place we least expected them.
Here in Madison, that video makes the rounds, and we hear the alien call us out in vibrating, computerized tones: “I have some questions, as you live in an area with major racial disparities in what you loosely term ‘criminal justice outcomes.’ Does it worry you at all that the leaders of your state justice system say everything is fine and try to cover things up, when their own experts disagree?”
Silence sits heavy on the call. The facilitator hesitantly speaks up. “Zig… lacks… Liason? Are you still there?”
“Sorry. Internet problems. Ahem… Does it concern you at all, that your jail is half full of Black humans, when anyone who has spent any time walking the streets of Madison can clearly see that Black people make up less than 7 percent of your county?”
The alien makes a sustained staccato choking noise.
“I apologize, our translator is not yet perfected. Lastly, the thing I am most concerned about today is the strange contradiction between your presumption of innocence and your practice of cash bail.”
A loud, distorted bell rings. “Uhhhh, Ziglax Liaison, your time is up, if you would like to, umm, finish your point…” The moderator trails off.
“You Earth people let rich humans accused of murder pay to walk free even when they break the terms of their agreement and your police crowdfund to get them out, but you disproportionately hold poor, presumed-innocent people before they even have a fair trial. Why? That is my primary question, for now. You all can reach me at [email protected]. I will be listening.”
We assume it to be a joke, or some weird advertising ploy. We go on with our lives. But their shining ships materialize like glossy turtle shells in orbit a month later.
Learning about bail in Dane County
The first thing we all need to do is bone up on how exactly bail works in Dane County. We’re all law-abiding citizens! We never really thought about it! We’re so sure the system makes sense. But then, we start digging.
Let’s walk through it, real quick. Let’s say you are arrested for disorderly conduct. The police decide if you are cited or if they should take you to jail. In a recent Nehemiah lunch and learn about arrests, Officer Lester Moore from the Madison Police Department explains: “Each arrest is a serious thing, because you’re dealing with someone’s life. At some point, people can possibly lose their jobs. When you make that arrest, this big ball starts to roll that has this huge effect on many parts of—not just that person’s life, but people who are connected to them as well. If you arrest the breadwinner… You have to think about those things when you deprive someone of their freedom. At that point, you have to ask yourself, what’s the effect?”
If you are taken to jail, you wait for a charge and a bail hearing. If you’re judged to be “not risky” to release, you can sign something and walk out soon after, returning for your trial, paying a fine if you don’t. But if the judge thinks you might skip out, or a risk assessment thinks that you’re dangerous, you might get a cash bond (also known as bail) and have to pay fat stacks to get out of jail before your trial. Of course, the system promises to give that money back when you show up to court.
When the Ziglax come back, we need to explain ourselves. What is happening when we hold people with bail? Searching the news, we find claims that downplay these possibly life-destroying effects of an arrest followed by bail. Dane County Circuit Judge Nicholas Judge McNamara claims that “Dane County is not routinely holding defendants on excessively high cash bail for low level misdemeanor charges.” That makes us feel better, for a bit. But what does “excessively high” mean? And what about race? Other reporting we’ve mostly ignored over the years shows that racial disparities have, if anything, widened over time.
The 2018 bail report by Judge McNamara and his team did not break anything down by race or gender. The circuit court publishes some summary statistics, but bail is not included. The Criminal Justice Council (CJC) Pre-Trial subcommittee has been trying to report in more detail, after the county board passed 2020 RES-177 in September of last year, requesting specific details on cash bail “based on race, gender, and age”. Preliminary results were shared in a March 25 meeting, and there are more details in an April 27 presentation to the Public Protection & Judiciary committee (PP&J) (which starts at the 24 minute mark).
But this report does not properly break down the numbers of who is getting bail and who can pay it, as RES-177 asked. Their statistics show the demographics of who has posted bail, but not the demographics of those who were able to pay compared to who was actually held on cash bail. This major missing piece is brought up in the Q&A at 1:05, and presenters Noemi Reyes and Colleen Clark-Bernhardt claim it was accidentally dropped from the slides.
The Dane County Sheriff’s jail website also does not break down current holds by case status and race; the Sheriff’s Office only does that in quarterly reports. So who’s in jail pre-trial, and what’s their bail set to, right now? It should be easy to find out, but it’s not. The Sheriff’s site does not publish any bail information, and you have to delve individually into the circuit court cases. We found now-retired Sheriff Dave Mahoney treating people pre-trial like they were assumed guilty last summer, so the Sheriff’s Office might not be the most reliable source for this data in any case. What happened to the presumption of innocence? The Ziglax probably aren’t going to like that.
As of April 26, there were 598 people in the Dane County jail system. 236 of them are pre-trial or pre-arraignment. How long have they been locked up? What is their bail set to? Going by booking date, the mean pre-trial “length of stay” is 50 days for misdemeanor-only cases and 174 days for cases involving felonies. If we instead use the most recent arrest date, those counts go down to 41 days and 138 days. Of those folks who have bail set, the amount is mostly between $250 and $400 for misdemeanor-only cases.
Again, these are people who have not had a trial. They are sitting in jail because they can’t pay, or choose not to pay in the case of some unhoused people. We shouldn’t forget there is a pandemic happening. But is this justice, for people to sit in cages for months before trial, on misdemeanor charges? In the past, Judge McNamara has said, “If people are looking in the wrong places for solutions, if they’re looking to fix something that’s not a problem, we’re not making progress.”
But there are clearly real problems here—and a lack of solutions, let alone progress—if you can sit in jail for months on a misdemeanor charge waiting for a trial. Let’s dig deeper.
Does bail make us safer?
If we don’t keep all those people in jail before trial, what about dangerous people, you ask? Violent… “criminals?” Well, even if you buy into that logic, the recent RES-177 report to PP&J showed that from 2016 to 2018, 3121 of the 7288 people given cash bail were not charged with “violent crimes.”
Judge McNamara said in the April 27 committee meeting that “In Wisconsin [bail] can only be set when it’s deemed necessary to ensure the defendant will reappear for future proceedings. We don’t set cash bail in Wisconsin based on risk of new crime, but the severity of an offense can drive cash bail partly because there’s a logical, common-sense kind of analysis that someone who’s facing serious consequences may be less inclined to return to court to resolve the case given serious penalties.”
A common-sense kind of analysis.
So we’re not keeping people in jail on bail for safety reasons. Plus, our current system doesn’t solve violence, sexual or otherwise. All that stuff is already happening right now, under the existing greed-fueled system, with our bloated carceral budgets and bail systems in America. It doesn’t take an alien expert to see that.
If imprisoning people kept us safe, our country—which has five percent of the world’s population and 25 percent of the world’s prisoners—would be the safest around. It’s clearly not. Prosecuting and imprisoning people feels like it should keep us safe. We’re all taught that; we all assume it. But it’s just not true. Prisons make us feel secure, but they don’t make us safe.
A new study (PDF) has found that choosing to prosecute misdemeanors can lead to more future misdemeanors, instead of reducing what we label as “crime.” (Crime is in scare quotes here, because the terms we use to define if actions are “criminal” are quite loose and open to interpretation. “Disorderly conduct” could easily apply to drunk people on State Street most weekends, but most of the folks in our jail charged with “disorderly conduct” are poor or… not white.)
Back to our focus: safety. Eliminating cash bail should not seem so radical, or unsafe. The federal criminal courts got rid of money bail across the U.S. in 1984. Was there a spike in crime? There was not.
There are places in the U.S. that have eliminated cash bail at the state and local level, so we have before and after statistics. Does all hell break loose? It does not. In fact, in many cases, it reduces the average population of the local jail by half. That could save us a ton of money, and improve people’s lives to boot.
We’ll explore the racial biases that influence who is locked up in the next section. But before we do, consider the Ziglax’s question: Is it worth holding all these presumed-innocent people in a cage, just for the vanishingly small chance that one of them might do something violent upon release? Does it matter who they are? Is this justice? Or is it just us trying to hide behind excuses?
Jail and the wealth gap
When we talk about bail, we’re talking about cash. In a country where wealth is unequally distributed along racial lines, Dane County is on the extreme end of that money gap. In 2011, well before a pandemic that has exacerbated racial disparities, over 54 percent of African American Dane County residents lived below the federal poverty line, compared to 8.7 percent of whites, meaning they were six times more likely to be poor than whites. Dane County African Americans were also almost 5.5 times more likely to be jobless than their white neighbors.
Putting up $300 for bail might not sound like a big deal to you, but at a time where most folks are living paycheck to paycheck, surviving a pandemic where even more families are living on the brink and personal debt is at an all-time high, $300 can easily ruin a life. Those of us who have financial privilege might not really understand it, until we talk to people who went through hell to pay bail.
Public Defender Catherine Dorl explained in an April 7 pre-trial subcommittee meeting that “[During the last six months or so], it’s holding steady as to who gets cash bail and who doesn’t. But as far as the amounts? Lately we’ve seen a trend where a small amount of bail is set, presuming the person can post it, maybe two or three hundred dollars, and then they don’t. […] There’s an intent there to make an amount that people can post, but then the reality is that they can’t even post a small sum.”
Dane County District Attorney Ismael Ozanne keeps claiming, as he did again in that same meeting, that “we release some 80 plus percent on recognizance or signature bonds already.” But that number is years out of date, includes traffic cases, and as noted earlier did not break anything down by race. So what’s actually happening in the remaining 20 percent right now? Does the DA even care? The residents of Dane County haven’t forced him to care yet, but we should.
Judge McNamara went on to say: “As the decision maker for those [bail] questions, I have almost zero factual information about a defendant’s ability to pay. I can make inferences from whether that person qualifies for a state public defender representation. […] There’s a strong inference that can be drawn from that about poverty, but […] we rarely ask, what can you afford? We really don’t do that. We should, perhaps…”
What purpose is cash bail actually serving, if our judges do not even know if people can pay it? Simple: it serves to keep poor people in jail. This is what any alien observers would be angry about. This is what we should be questioning.
More details about race, ethnicity, gender, and age were revealed in the report for RES-177, but unfortunately that research did not examine how cases were chosen to have cash bail or not. They essentially narrowed down the number of cases to the “20 percent” with cash bail, and then broke down demographics within that subset. This does not reveal the whole story: we can have a fairly even distribution of amounts across races in that 20 percent, but still be assigning cash bail far more to Black people. (We are.)
We need to demand that the people driving our justice system continue this research, but we also need to start looking ourselves.
The Ziglax liaison’s point seems pretty simple, when we step back and look at the system. Rich people walk out. Poor people sit in jail as their lives unravel. How is that justice?
Fairness in bail
Still, there is more to understand. 99 percent of the growth of U.S. jail populations in the last 15 years has been in pre-trial holds—for people who are legally innocent. Who gets held with bail and who does not? Here in Dane County, prior to 2016, we don’t really even have the statistics. It all differs by case and judge and jurisdiction, so let’s look at some recent numbers.
We wrote some code to look at the 384 Dane County criminal cases we could find in WCCA with only misdemeanor charges, from 2019 to 2021. (WCCA sometimes blocks access to cases, so this analysis from outside the system is, unfortunately, an incomplete look.) 155 of those misdemeanor-only cases have “Caucasian defendants.” 211 have “African American” defendants. 13 of the 155 Caucasian defendants were given cash bonds and held pre-trial. 59 of the 211 African-American defendants were given cash bonds and held pre-trial. That’s 28 percent of African-American defendants to only 8 percent of Caucasian defendants.
We are jailing three to four times as many Black people on misdemeanor charges, before trial, and that’s before adjusting for population. In a perfect world where everything was even by population distribution and the rate of cash bail given was the same, given 155 Caucasian misdemeanor-only cases, we would expect to see 11 African-American cases, with one African-American defendant held in jail. Instead, over the past two years, we’ve jailed at least 59 African-American people pre-trial.
The CJC committee and leaders like Judge McNamara may not consider this a problem, and see these additional people held in our jail as something of a drop in the bucket. But why is allowing (and perpetuating) this disparity even an option?
Next, let’s draw cross-product comparisons between cases with similar charges, across felonies and misdemeanors from 2019 to 2021.
Within one year of recent cases, I found 1,378 pairings where African-American defendants were jailed, while Caucasian defendants with similar charges were given signature bonds and walked free. I found only 156 pairings where Caucasian defendants were jailed and African-American defendants were released on signature bonds for similar charges.
We have a clear picture of systemic bias in Dane County: we arrest more African Americans for misdemeanors, then we give them cash bonds instead of signature bonds at a rate much higher than their Caucasian counterparts. When we see that, we start to worry: what are we going to tell the Ziglax Consortium? It looks bad. How will we explain this to an outside observer?
How do judges assess risk?
Now, digging further, how do we actually choose to either give someone cash bail or let them sign something and walk away? Part of it is judges’ discretion, and part is based on risk assessment reports.
In the Wisconsin Department of Corrections’ arrest intake flowchart, we can see the acronym “COMPAS” all over. The place we’re interested in here for bail is near the top, “Decision #3.” What is COMPAS, exactly? It’s an artificial intelligence statistical system for supposedly predicting “high risk” defendants. With all the recent press around racial bias in algorithms, this sounds like it might be a bad idea.
An American Bar Association journal article about risk-assessment algorithms from 2017 quotes Angel Ilarraza from the company that created COMPAS, as “[thinking] that this concern is ill-founded. ‘There’s no secret sauce to what we do; it’s just not clearly understood.'” But the algorithm is secret: we are not allowed to know fully how it works, because it’s a private company’s intellectual property.
So, great. It is not going to please the Ziglax to find out that these systems are “not clearly understood,” the public are not given details of what’s in the box, we’re paying big bucks for it, and we’re using it to make decisions that can ruin people’s lives. The Atlantic had coverage from Ed Yong in 2018 of a Dartmouth study that showed COMPAS is no better at predicting crimes than groups of random people on the internet.
What exactly is in the COMPAS box? Is it a correlation where the system simply feeds itself, by relying on past charges? Since the current system incarcerates Black people far more than white people, do we end up using risk assessment algorithms to perpetuate cash bonds on more Black people? Or does COMPAS actively discriminate against Black people in other ways, even though race is never directly entered?
The systems are so opaque, there might not be a way to explain to the Ziglax what’s actually going on. We begin to discuss the repercussions amongst ourselves… at least it seems unlikely that their enlightened society would throw us on a prison planet for our systemic misdeeds.
Even from what little we do know, this confusing exploration into COMPAS is a reminder that systems which are “not clearly understood” are being used to make important, life-altering (and in many cases, life-ruining) decisions for people in our community.
It’s time for radical solutions
We want our justice system to meet some definition of fairness. But we’ll never know what fair means if we, the public, can’t understand what our justice system is doing. From what we can see through the cracks, there are massive disparities in who gets cash bail for what charges. The life-ruining hammer of cash bail falls on poor people, where judges don’t even know who has the ability to pay.
And does bail make us safer? There’s little evidence it does. Plenty of places have done away with cash bail, often reducing their average jail population by half in the process, with no measurable impact on safety.
Task forces, minor reforms, and attempts at change have failed, as disparities in Dane County have simply gotten worse. More task forces and more signalling for change without actually changing systems is not going to solve anything. Reform-focused committees studying “pre-trial release” or “repeat offenders” have no imagination; they assume the existing system of cash bail is necessary.
Let’s lay it on the line. We’re choosing to jail people before they have been proven guilty. There’s an even easier way to fix the resultant racial and class disparities: we can do away with cash bail, while working to ensure we don’t build the newest Jim Crow and increase e-carceration. We can reduce the number of people in the supposedly-necessary giant new $225 million jail our leaders seem set on building, fix some major racial disparities, and save some taxpayer money to boot—money that we can spend on programs that actually help people.
In the April 7 meeting, chair of the pre-trial committee Judge McNamara commented on the unfairness of bail: “It’s all just very loose. […] It’s not a good process in that way. Money in this whole business is an unpleasant feature in lots of ways.” He went on to claim that “the legislature’s really kind of the decision maker” when it comes to bail. Now, we are not lawyers, but we can see our statutes, as written, seem to give judges entire control of giving bail or not, for misdemeanors or felonies. We’ll have to ask him why the legislature is the scapegoat here.
Judge McNamara went on to point out that Illinois and other jurisdictions are actively eliminating cash bail right now, “taking that whole set of questions out of the [process].”
Dane County judges could decide right now that cash bail is unfair, cruel, and racist. They could agree that it feeds a cycle of poverty and jail time, and we should decide not to use it any more. If they keep using it, we need to ask: Why?
As we log in to hear the next county board meeting, with some possible answers in hand, we hear the unsettling voice of the alien liaison again: “I’ve gotten some feedback explaining your choices to jail poor people pre-trial. Some of you still can’t imagine what’s wrong with the system, and I implore you to look deeper. Try to imagine a system that is more fair. It would be hard to imagine building a system that was less just. Next, I have some questions about those people living in tents in your park…”
A distorted bell rings out, as the facilitator interrupts the meeting. How are we going to explain ourselves? It’s time to learn more.
In the meantime, if you’d like to help get people out of the cages we have put them in pre-trial, people who our system supposedly considers “innocent until proven guilty”… There are people who may be held in jail on bail as low as $200 or $300, so please contribute to the Free the 350 Bail Fund. (If you’re unfamiliar with the concept of a bail fund: Your money pays to get people out, then cycles back into the fund to free more people. We should Free Them All!)
If you or someone you know has experienced the unfairness of cash bail, call in and tell your story to the Dane County Jail Listener Hotline at 608-200-3096. Folks will forward your message to county board and committee meetings about the jail.
You can also join the conversation about prison abolition in general: the Madison Area Democratic Socialists of America (MADSA) Abolitionist Working Group meets every other Wednesday. Check our calendar. You don’t need to be a DSA member to come to these meetings. Come imagine what a world without jails looks like, together.