State v. Anderson

JANINE P. GESKE, J.

¶ 38. (dissenting). I respectfully dissent. I do not believe that the legislature intended that a defendant who violates more than one condition of his or her bail bond be subject to an undefined number of potential charges and punishment. Therefore I believe that the multiple convictions and penalties for bail jumping permitted by the majority opinion violate the double jeopardy provisions of the state and federal constitutions.

¶ 39. I agree with the majority that there are four factors used to determine legislative intent in a multi*758plicity analysis: statutory language; legislative history and context; the nature of the proscribed conduct; and the appropriateness of multiple punishments. In my view, based on the third and fourth factors, the legislature could not have intended that circuit courts create multiple crimes by imposing multiple conditions of bail.

¶ 40. This is a case where good facts make bad law. Good facts, sometimes, can form a comfortable backdrop against which courts relax their vigilance to protect constitutional rights. The majority nicely articulates reasons why the conditions of bail set for Anderson, and which he violated, serve to protect different interests. In the majority's analysis, separate punishments for each violated condition also serve to protect those interests.

¶41. However, the majority's interpretation in the hands of a zealous prosecutor could lead to results not intended by the legislature. In theory, a .circuit court judge or a judicial court commissioner may set an infinite number of bail conditions for a defendant pursuant to Wis. Stat. § 946.49. Those conditions may include, for example, no contact orders, no drinking alcoholic beverages, no driving a motor vehicle, no weapons, no drugs, no new crimes, the requirement to attend school, attend AA meetings, abide by a curfew, remain in or stay out of certain geographical areas, attend counseling, take medication, live at home, keep a job, notify of change of address, etc. The number and nature of the bail conditions will depend in part on the individual practices and philosophy of the judge, the time the judge has to spend on the case, the local practice, the prosecutor's particular request, and other variables. Some judges may set bail conditions in great *759detail while other judges may simply proscribe certain conduct by stating "no new arrests."

¶ 42. For example, Judge No. 1 might order Emily Mathews, a defendant charged with the crime of forging a check, a felony, released on bail with the detailed conditions of "no drinking, no violation of a curfew of 8:00 p.m., no contact with Susie Fox, and no new crimes." Judge No. 2, a busier judge who is always concise, might release Ms. Mathews on bail with only the condition of "no new crimes." One night Ms. Mathews drinks a couple of beers, violates her curfew and becomes disorderly with Ms. Fox. Under the majority opinion, Ms. Mathews, who was released by Judge No. 1, now can be charged with four new felony charges of bail jumping and can face 20 more years in prison. Or, Ms. Mathews, who engages in identical conduct but was released by Judge No. 2, could only be charged with one count of felony bail jumping and face five years in prison. If Ms. Mathews repeated this behavior over a four-day period, in Judge No. l's court she then would face 16 felony charges and an exposure of 80 years in prison. In Judge No. 2's court, she would only face four charges and 20 years in prison. See State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).

¶43. In another example, the defendant, John Riley, a mentally disabled, alcoholic street person, is charged with three counts of shoplifting three bags of potato chips from a drug store on separate days. In each case, Mr. Riley was released on bail and ordered "to live with his mother, to see his mental health counselor everyday, to stay off the block where the drug store is located, to refrain from drinking alcoholic beverages, and to have no contact" with a certain friend of his. On one particular day, Mr. Riley starts to drink and then violates the other four conditions. Under the *760majority's opinion and under State v. Richter, 189 Wis. 2d 105, 110, 525 N.W.2d 168 (Ct. App. 1994), Mr. Riley may be charged with 15 counts of bail jumping. For these 15 offenses he faces a possible sentence to the county jail for over 11 years and a fine of up to $150,000. This scenario is possible even if he were ultimately acquitted of the underlying shoplifting charges. Mr. Riley could face over 11 years in jail for behavior that, standing alone, has not been criminalized by the legislature.

¶ 44. Certainly the legislature intended that a defendant be held criminally accountable for violating the terms of the bail bond, even when the violation consists of conduct which in and of itself is not criminal behavior. Both these examples demonstrate the potential implications, however, of interpreting legislative intent as the majority has. The real issue we face in this case is whether the legislature intended, when it created the bail jumping statute in 1969, to subject the defendant to a single criminal charge if he or she violated one or more conditions of a bail bond, or was the intent to subject the defendant to potentially unlimited criminal charges for violating multiple conditions of one or more bail bonds? In other words, is each bond, or each condition of each bond, the appropriate unit of prosecution?

¶ 45. The United States Supreme Court, in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 178 (1873), established that the Double Jeopardy clause prohibits punishment in excess of that authorized by the legislature. In construing the bail jumping statute to permit a circuit court to separately convict and sentence a defendant for having violated multiple conditions of a bail bond, the majority allows, in my view, punishment in excess of that authorized by the legislature.

*761¶ 46. Moreover, the potential for infinite punishment fails the "appropriateness of the punishment" prong of the legislative intent analysis. Under the bail jumping statute, the legislature has authorized a certain punishment, based on the severity of the underlying offense, when at least one condition of bail is violated.

¶ 47. Unlike most crimes the legislature creates, any punishment for the crime of bail jumping is often only part of the serious consequences for that prohibited conduct. When a defendant violates a condition of bail, the bail may be ordered forfeited, other conditions may be imposed, and/or the defendant may be taken into custody. See Wis. Stat. §§ 969.13, 969.08(2), and 940.49. If the defendant's violation of the bail bond is also a criminal offense, he or she could also be charged, convicted and sentenced for that crime.1 If the defendant is subject to more than one bail bond and violates a condition common to both, he or she may be charged with bail jumping for each bail bond breached. See Richter, 189 Wis. 2d at 110. If the defendant is on probation or parole at the time of the bail bond violation, that prohibited conduct could also become the grounds for revoking the probation or parole. See Wis. Stat. §§ 973.10(2), 304.06(3). If the defendant is convicted of the underlying offense, the circuit court can consider the violation of the terms of bail as an aggra*762vating factor justifying an enhanced punishment at the time of sentencing. See Waddell v. State, 24 Wis. 2d 364, 368, 129 N.W.2d 201 (1964) (permitting use of information regarding complaints of other offenses as index of defendant's character); Handel v. State, 74 Wis. 2d 699, 701-02, 247 N.W.2d 711 (1976) (permitting consideration of pending criminal charges); see also Elias v. State, 93 Wis. 2d 278, 284, 182 N.W.2d 512 (1988) (listing cases permitting other uncharged and unproven offenses).

¶ 48. Finally, the plain language of the bail jumping statute itself supports my interpretation that the legislative intent was to impose one penalty for an intentional violation of "the terms of the bail bond." Wis. Stat. § 946.49. The majority correctly points out that Wis. Stat. § 990.001(1) provides that the word "terms" could be read in the singular. However, the majority then essentially reads out the word "the" before the word "terms" and replaces it with "a term." Thus the majority effectively reads a construction into the statute which is not present. Specifically, the majority interprets the bail jumping statute to prohibit the intentional failure to comply with "a term of his or her bond." If the legislature intended the result reached by the majority, it simply could have written the statute to read "whoever, having been released from custody under chapter 969, intentionally fails to comply with a term of his or her bond," is guilty of bail jumping. The legislature did not do so.

¶ 49. In my view, the presumption of legislative intent to create multiple penalties is overcome by a careful review of the implications of the majority opinion. The appropriate unit of prosecution is the bond, not the individual conditions. Once there is a violation of the "terms of the bond," the singular crime has been *763committed for each bail bond the defendant has signed and the defendant is then subject to the penalties set forth in Wis. Stat. § 969.08: to increased bail requirements and altered condition(s) of release, the possible revocation of his or her release, the possible revocation of his or her probation or parole, to the forfeiture of the bond, and to a possible harsher sentence should he or she be convicted of the underlying offense.

¶ 50. In my view the possible scenarios I describe cannot be what the legislature intended when a defendant has committed the crime of bail jumping under Wis. Stat. § 946.49.2 The presumption in favor of multiple sentences is overcome by an analysis of the nature of the proscribed behavior and the appropriateness of multiple punishments. I conclude that the appropriate unit of prosecution is the bond and not each individual condition. Under today's majority opinion and existing law, there is nothing to prevent the examples I gave from occurring. Therefore, I respectfully dissent.

¶ 51. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley join this dissent.

For instance, the defendant's violation of a condition of bail may also constitute violation of one of the following crimes: battery, Wis. Stat. § 940.19; battery to a witness, Wis. Stat. § 940.19; intimidation of witnesses, Wis. Stat. §§ 940.42 and 940.43; intimidation of victims, Wis. Stat. §§ 940.44 and 940.45; court orders and penalties for prevention or dissuasion of a victim or witness in a criminal matter, Wis. Stat. §§ 940.47 and 940.48.

"[I]t is a precept of justice that punishment for a crime should be graduated and proportioned to the offense." Weems v. United States, 217 U.S. 349, 367 (1910). See also Carmona v. Ward, 576 F.2d 405, 426 n.6, (2d Cir. 1978) discussing origins of proportionality, and observing that English common law "had established a policy against disproportionate punishment, the ancient origins of which can be traced to the laws of Moses."