The Wisconsin legislature has put a bail constitutional amendment on the April 2023 ballot, but what does this entail?

Currently, Wisconsin pretrial release law allows for defendants to be released under reasonable conditions designed to assure their appearance in court, to protect members of the community, and to prevent intimidation of witnesses. In addition, financial conditions are limited to the amount that is necessary to assure appearance of the defendant.¹

The question on the April ballot is as follows:

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?

Currently, the state constitution authorizes judges to consider whether "there is a reasonable basis to believe that the conditions are necessary to assure appearance in court" when they consider cash bail.

The proposed adjustment would enable additional use of cash bail, which penalizes those who cannot afford to pay their way out of jail. This will punish those in poverty who may not be able to post bail even on a misdemeanor while others with a large bail for a felony may be able to post it because they have the funds to do so.

Cash bail is an unsuccessful way of measuring safety in society – it is only a way of measuring poverty.

What Wisconsin should do is follow the lead of states who have eliminated cash bail as a measure of risk. States who have eliminated the use of cash bail include New Jersey and Alaska.² These states now utilize a system where they give defendants supervised release or continued detention.

Illinois and New York have also begun to implement change in this area, with New York declaring that wealth shouldn’t determine liberty. Instead, to examine risk, these states use a risk assessment that allows the courts to determine whether the defendant is a flight risk. They use this information to decide if supervised release is advisable or if detention is necessary.³ However, it is just a tool, and judges retain discretion to consider the violence of the crime.

Wisconsin should take the position that many other states have taken: to get rid of the cash bail system and implement a bail reform that is based on the actual risk or the individual, and not their financial situation.

Note: The views stated in this blog post are those of the author and do not necessarily reflect those of the Criminal Law Section or its board.

This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Anya van Wagtendonk, “Lawmakers debate constitutional change to cash bail,” Wisconsin Public Radio, Jan. 11, 2023.

² The Facts on Bail Reform, New York Civil Liberties Union ACLU of New York.

³ Pretrial Release: Risk Assessment Tools, National Conference of State Legislatures.