Wisconsin lawmakers finalized a measure Thursday asking spring election voters to consider a proposed constitutional amendment that would give judges more leeway when setting cash bail.
The state Assembly approved the measure 74-23 Thursday, with 10 Democrats joining Republicans to place the constitutional amendment on the spring ballot. The state Senate also voted 23-9 to approve the same proposal earlier this week with two Democrats joining the Republican majority.
In Wisconsin, the amount a defendant is assigned to pay to be released from jail prior to a trial — known as bail — is set based on the defendant’s likelihood of returning for their trial date, according to state statute.
The proposed constitutional amendment passed Thursday adds language that expands judges’ discretion when assigning a bail amount for people accused of violent crimes. These include previous convictions for violent crimes, “probability” of failure to appear in court, protecting the community from harm, preventing witness intimidation and “potential affirmative defenses of the accused,” according to the bill text.
Two consecutive sessions of the Legislature must pass a proposed amendment followed by approval from statewide voters, according to the state constitution. Since this amendment was first introduced and approved with bipartisan support in February 2022, it now advances to voters in the spring election.
Supporters of the cash bail amendment cite the 2021 Waukesha Christmas Parade attack, in which an individual out on $1,000 bail killed six after driving an SUV through a parade.
“Our current system for bail is failing to protect law-abiding citizens,” Sen. Duey Stroebel (R-Saukville) said in a statement Tuesday. “It is critical judges are unrestricted in their ability to review the totality of the circumstances when determining bail instead of releasing dangerous criminals back on the street to commit additional crimes.”
Critics of cash bail, like the Wisconsin chapter of the Americans for Civil Liberties Union, said it creates a “two-tiered system of justice” based on an individual’s wealth. The organization raised concerns with the amendment in relation to due process and excessive bail prohibition, both of which are affirmed in the U.S. Bill of Rights.
“The changes proposed … would further entrench the reality that Wisconsinites charged with a crime are not innocent until proven guilty but instead innocent until proven poor,” the ACLU said in a Jan. 10 testimony against the bill.
Wisconsin Justice Initiative Board President Craig Johnson also testified against the amendment last week.
“Amending the Constitution to focus more on the offense charged rather than the total risk profile of an accused person will likely result in locking up low-risk poor people before trial with high cash bail while rich people who may be dangerous can buy their way out of custody,” Johnson said.
The Assembly voted 62-35 to approve a second resolution Thursday, adding an advisory referendum to the spring ballot. The referendum question asks voters whether a state aid recipient should submit evidence of a job search in order to keep receiving aid.
Advisory referendums have no binding power in Wisconsin, meaning the results will have no effect.
Gov. Tony Evers and Senate Democrats unsuccessfully attempted to change the resolution’s language Tuesday to instead ask about repealing the state's 1849 ban on abortion. Senate Majority Leader Melissa Agard (D-Madison) unveiled Democrats’ proposal at a press conference Tuesday morning.
“Legislative Republicans continue to ignore the will of the people and continue to be at odds, even with each other, regarding abortion access in our state,” Agard said in a statement Tuesday. “They continue to jeopardize the lives of pregnant people with every day that passes and abortion remains inaccessible in Wisconsin.”
Agard also criticized Republicans’ work requirement referendum as a ploy to “gin up” GOP base voters in the upcoming Apr. 4 election for a pivotal Wisconsin Supreme Court seat, according to the Associated Press.
Republicans, including Sen. Steve Nass (R-Whitewater), accused Democrats of doing the same on other issues, including a marijuana advisory referendum passed this fall in Dane County.
“They are doing it all the time at the local level,” Nass told Channel 3000 Tuesday. “Why are they then being hypocrites and [saying] we can do it, but you can’t?”
The Apr. 4 election will determine the balance of Wisconsin’s Supreme Court. Conservatives currently hold a 4-3 conservative majority, though Justice Brian Hagedorn has sided with the court’s liberals in past cases. The court will likely decide on cases regarding women’s healthcare, redistricting processes, voting laws and other major issues in coming years.
A third joint resolution to honor the American Birkebeiner cross-country ski race, held annually in Sawyer and Bayfield counties, passed the Senate with bipartisan support this week. The event draws nearly 50,000 participants and spectators annually to the region, according to the resolution text.
