Author: Attorney David E. Saperstein
This practical series, “Nuts and Bolts,” is intended to demystify the process of being charged with a crime in Wisconsin state (circuit) courts. The court process can be overwhelming. Knowing what to expect from the process may make it less confusing and unpredictable, and hopefully less stressful.
Will I Be in Jail During My Case? — Bail and Pretrial Release
Most accused persons are released from custody during the pendency of their cases, either by posting cash and/or by signing a court order promising to abide by certain conditions while the case is pending. The latter option, a recognizance bond, is a release order which requires no posting of cash but requires the accused person to promise to appear in court at all scheduled court appearances. A recognizance bond also requires the accused person to follow other case-specific conditions ordered by the court. In Wisconsin, a recognizance bond is called a “signature” bond.”
The alternative to a signature bond is a cash bond. If the court orders a cash bond, then the accused is required to post some amount of money to gain his release. The amount of the cash is set by the court, with input from the prosecutor and defense attorney. As with a signature bond, a cash bond will also require the accused to appear at all scheduled court proceedings, and to follow other case-specific conditions.
After his arrest for a misdemeanor offense, an accused is typically released on his own recognizance by law enforcement (this is commonly referred to as a “book and release”) or will be released from custody after posting an amount of cash set by the law enforcement agency that arrested him. However, when a person is arrested and accused of a more serious felony offense, he will stay in jail until he appears before a judge or court commissioner at a bail hearing. Typically, that hearing must occur quickly – within a few days of arrest.
At the bail hearing the judge will decide whether the accused may be released on a signature bond or cash bond, or, for the most serious cases (such as homicide or sexual assault), not released at all during the pendency of the case. The judge’s primary consideration is whether the accused presents a “flight” risk — that is, a risk to not come back to court if released. An accused person’s ties to the community – family, employment or school and duration of residence in that community – are relevant considerations when assessing risk of flight. The judge will consider the seriousness of the current allegation(s) and the risk of harm that the accused, if released, may pose to other members of the public. The judge will also consider any prior record of the accused — especially any prior record of not coming to court when required, or not following previous conditions of bail. If the accused presents strong ties to the community, a relatively low risk to the public, little or no prior history of violating bail and, thereby, a low risk of flight, then a signature bond is typically ordered.
Whether the court orders release on a signature bond or a cash bond, there will be conditions that the accused must abide by. Again, the primary condition is to return to court when required. It may seem obvious, but another standard condition is that there cannot be any additional criminal charges while the accused is on bond. The accused also must immediately notify the court of any change of address, so that he can receive notices of future court proceedings. Depending on the alleged facts of the case, other common conditions include absolute sobriety, no contact with certain individuals who are considered victims, witnesses or co-defendants and restrictions on travel outside of the state. The court may also order that the accused submit to random drug or alcohol testing, wear a GPS tracking device while the case is pending or other more restrictive conditions.
The defense attorney’s job at this early stage is to advocate for reasonable (least restrictive) conditions of release. Whatever release conditions are set by the court, the accused must strictly follow them or risk another arrest and an addition charge of “bail jumping” – which is the term describing any violation of a court-ordered condition of release.