Wisconsin says ‘yes’ to cash bail amendments

Wisconsin voters approved two constitutional amendments Tuesday to expand judges’ discretion when setting cash bail. 

After initial confusion among voters regarding the questions’ wording, the two consequential amendments gained strong approval on Election Day. Approximately two thirds of Wisconsinites voted “yes” on both amendments, according to Associated Press returns. The amendments will now be added to the state’s constitution.

The lengthy questions asked voters whether state law should broaden judicial criteria when determining conditions of an accused criminal’s release before trial. Collectively, the amendments give judges more leeway when imposing and setting bail to protect public safety, according to a joint resolution passed in March. 

Republican lawmakers voted to place the cash bail measures on the ballot last month, and the amendment has received support among the Republican majority. Many Democratic lawmakers, including Gov. Tony Evers, vocalized their opposition leading up to Tuesday’s election.

A third non-binding referendum question prompted Wisconsinites to weigh in on partisan debate regarding state welfare requirements. The question passed with support from over three quarters of voters Tuesday.

The Daily Cardinal assembled a rundown explaining the election's ballot questions. 

Question #1: Conditions of release before conviction. “Shall section 8 (2) of article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?” 

Approximately 66.5% of Wisconsin voters said “yes” to this ballot measure, according to AP estimates. 

This question changes the constitution’s phrasing from “serious bodily harm” to “serious harm,” allowing the court to consider emotional and psychological factors when setting bail before the release of the accused. 

The new amendment may pose adverse effects, however. In an interview with Wisconsin Public Radio, University of Wisconsin-Madison Law Professor Adam Stevenson claimed this additional criteria will likely increase the number of incarcerated people in the state, which in turn may be costly for Wisconsin taxpayers. 

Now that the amendment has passed, Wisconsin judges have a greater ability to keep those who haven’t yet been convicted of a crime behind bars based on their perceived potential threat to public safety. 

Question #2: Cash bail before conviction. “Shall section 8 (2) of article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, including the accused’s previous convictions for a violent crime, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation, and potential affirmative defenses?” 

Approximately 67.6% of Wisconsin voters voted in favor of this addition to constitutional bail requirements, according to AP estimates. 

Under current state law, cash bail is determined only by an accused person’s likelihood to return for their court appearance. However, under the new amendment, judges are also authorized to set bail “based on the totality of the circumstances.” 

The new law provides additional factors judges can consider when determining bail amounts, including any past criminal convictions. 

“It is a huge step in the right direction for holding violent, career criminals accountable,” Republican Rep. William Penterman told the Associated Press in January. 

Question #3: “Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?” 

The third referendum question shifted away from the topic of cash bail and instead focused on work requirements for individuals seeking welfare benefits. This nonbinding referendum proposed expanding requirements for state Medicaid benefit eligibility to include proof of an active search for work for childless program recipients.

This question received the highest amount of public support, with 79.5% of voters saying “yes” to welfare requirements, according to AP estimates. 

While the first two questions centered around a proposal to change state law, the final question has no effect on state law. 

These results do not immediately change state legislation, but they do measure public opinion regarding welfare requirements and provided insight into the values of Wisconsin voters, according to Republican lawmakers.

Wisconsin’s Constitution was amended to change the cash bail requirements Wednesday morning.

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