Guilty Till Proven Innocent: Pretrial Detainees of the Criminal Justice System
- WULR Team
- Dec 19, 2025
- 4 min read
A statistical analysis of the Wisconsin Criminal Justice System
Published December 19th, 2025
Written by David Youssef
Statistics don’t favor the Wisconsin Criminal Justice System. As of October 31st, 2025, there are 23,501 people in the Department of Corrections’ “care”—5,5795 people over the maximum capacity designed for the system. In 2023, the Prison Policy Initiative’s rough estimate for the population in local jails is just over 12,000—a number they found has become increasingly composed of unconvicted pretrial detainees. Wisconsin’s incarceration system is also infamous for disproportionately affecting African Americans and other people of color. The Vera Institute has found that in 2019—despite only comprising about 7% of the state population—African Americans accounted for 29% of the jail population and 41% of the prison population, respectively. This trend also applies to other people of color, notably the Native American population, being 1% of the population but being 4% of both the prison and jail populations.
But perhaps the most startling statistic is that, according to both the Vera Institute and the Prison Policy Initiative, about 6,000 of those in jails are “pretrial detainees”. Prison detainees are people simply waiting for their trial and not yet convicted of any crime, a third of whom, by the measure of MKE Freedom Fund, were people unable to pay bail. While bail or pretrial detention are both intended to ensure the defendant appears in trial, attorney Tiffany Woelfel has shown that pretrial detention has numerous negative aspects, including increasing an individual’s chances of not appearing at their trial. Among these flaws is that those detained plead guilty and are convicted more often, and that it adds economic strain in regards to jobs. These periods of detention are impacted by numerous factors, including COVID, according to Wisconsin Watch. The Wisconsin Law Journal writes that the lack of public defenders for those unable to hire their own attorney prolongs the time it takes to process a case and creates a backlog. So, for at least 2,000 of those currently in jail, they were detained and may stay in those jails for an indeterminate period of time because they were too poor to afford the alternative. This fails to account for the unknown number of those incarcerated in prisons that were only there because of this pipeline formed by the justice system between poverty and incarceration.
However, these statistics fail to properly capture the plight of those in jails. As defined by Michigan Defense Law Firm, there is a distinct difference between prisons and jails, with jails being used to detain those not yet convicted or for shorter sentences, typically less than a year. They are typically under the management of the local law enforcement. Prisons, on the other hand, are facilities for long-term incarceration, designated under the supervision of the state—specifically the DOC—for most offenses under state law. Federal prisons are under federal jurisdiction and are intended for violations of federal law. This difference is especially important for being able to learn basic statistics of those incarcerated. For prisons, the Wisconsin DOC keeps a meticulous record of the “Persons In Our Care” population, information consolidated between every facility under their care. For local jails, however, these are kept to varying levels of detail and format, making it hard to have standardized measures of comparison, especially post-pandemic.
Adding to the complexity are Wisconsin’s various reforms to bail. For instance, in a report from 2013-2016, Dane County released 81% of defendants on “signature bond”, which means payment only needs to be made if the defendant doesn’t show up to court. This is different from the typical bail system, which has a payment prior to court, as a form of collateral to guarantee the defendant shows up to the court. Further research published by the Cato Institute has shown that cash bail does not have an effect on appearance in court, contradicting the justification for financial means of allowing pretrial release. Despite these findings, Dane County is very much an outlier, with pretrial programs and policies across counties being inconsistent at best, according to a 2020 Pretrial Survey. Of the 72 counties of Wisconsin, 46 participated, with only 19 of those offering pretrial services of any kind. Only 9 of the participating counties re-review bail for defendants in custody after bond was determined, and only 18 had any pretrial assessment of any kind. Lack of funding, staff and interest of stakeholders were the reasons cited as to why these policies have yet to be implemented.
Considering the evidence of jails housing those who have yet to be convicted of a crime, paired with the already disproportionate incarceration rates of the state, radical change is desperately needed for the Wisconsin Criminal Justice System. Basing the release of one defendant over another, dependent on wealth—a factor shown not to be a deterrent for skipping court—is keeping an entire social class incarcerated. Noticeable strides are being made with recent reforms, for example, the city of Milwaukee using its own pretrial assessment and trying to avoid using cash bail, according to the State Bar of Wisconsin. However, these reform attempts are still far from the level of standardization and consistency required to maintain a semblance of justice.
The biggest step forward would be a policy similar to that pushed by Tiffany Woelfel to have pretrial assessments be a statutory requirement for all counties to adopt. Research published by Rand that looks into the results of implementing these assessments has found extremely favorable trends. They have found that the judges who follow the recommendations of the pretrial assessment end up releasing more than three times the defendants compared to the judges who use it sparingly, with the recidivism rate of defendants not varying between the groups. It was also found that racial disparities in rates of pretrial detention simultaneously declined. None of these reforms would have an impact on public safety. Thus, with proper county-wide mandates of pretrial assessments as well as the limitation of cash bail as requirements, Wisconsin can start taking its first steps toward finally fulfilling the belief that we are all “innocent till proven guilty”.
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