Wisconsin GOP Fast-Tracks Constitutional Amendment on Cash Bail
The Wisconsin State Assembly and Senate are moving forward with a constitutional amendment that would allow judges to consider more factors when setting cash bail. The amendment, which was introduced in response to the Waukesha Christmas Parade tragedy in which six people were killed and over 60 were injured when a Milwaukee man on $1,000 bail in a domestic violence case drove through the parade route, passed both chambers with bipartisan support in the last session.
If approved by the Legislature in the coming weeks, the amendment could go before voters in the April election, which includes a highly contested race for the state Supreme Court. In order to become a constitutional amendment, the measure must pass two consecutive legislative sessions and be approved by voters.
The proposed constitutional amendment in Wisconsin would allow judges to consider a wider range of factors when setting the monetary amount of bail. Currently, judges can only use bail amounts to ensure a defendant appears in court. However, the amendment would allow judges to consider the defendant’s past criminal record and the need to protect the public from “serious harm” when determining bail.
In addition to monetary bail, judges can already consider other terms of pretrial release, such as ordering a defendant not to have contact with a victim or using GPS monitoring, in order to protect the community and prevent witness intimidation. This amendment aims to give judges greater discretion in determining the most appropriate conditions for pretrial release based on the specific circumstances of each case.
Bail is typically set at the beginning of the court process, when a defendant is still considered innocent until proven guilty. In Wisconsin, defendants must post the full amount of cash bail to be released from custody. This differs from many other states, where defendants can pay a portion of their bail amount using a bail-bondsman system.
While Wisconsin does allow for defendants to be held without bail in certain serious cases, prosecutors must meet a high legal threshold to make this happen and the statute is rarely used. Some prosecutors in the state have called on lawmakers to revise this statute and make it easier to hold dangerous defendants without bail, but these efforts have not yet advanced.
State Representative Cindi Duchow and Senator Van Wanggaard introduced a constitutional amendment on Wednesday that would allow judges to consider more factors when setting cash bail. The lawmakers claim that this amendment will give judges the flexibility they need to improve public safety. The amendment was introduced in response to a tragic incident in which a Milwaukee man, who was free on $1,000 bail for a felony domestic violence case, drove an SUV through a parade route, killing six people and injuring more than 60 others.
The amendment passed the Assembly and Senate with bipartisan support in the last legislative session, and if approved again this month, it could go before voters in the April election. This is not the first time that Duchow and Wanggaard have introduced similar measures, as they also did so in 2017 and 2019.
Duchow stated, “We should use common sense and what works in our fight against violent criminals. Courts should be able to set bail for violent crimes based on reasonable factors.”
State Representative Dora Drake (D-Milwaukee) has expressed her concerns about the proposed constitutional amendment that would allow judges to consider more factors when setting cash bail. Rep. Drake, who is the ranking Democratic member of the Criminal Justice and Public Safety Committee, argues that the proposal will only exacerbate the existing disparities in the justice system, and that only the wealthy will be able to afford bail. She believes that the amendment is not a public safety measure, and that it violates equal rights protection and due process rights in the Constitution.
On the other hand, Senator Van Wanggaard (R-Racine) acknowledges that no one wants to see someone sitting in jail on a minor crime because they can’t afford to pay a small cash bail, but he also believes that dangerous criminals should not be released simply because they are not considered a flight risk. The senator believes that the amendment will give judges the flexibility they need to improve safety.
Other states, including Illinois and New Jersey, have stopped using cash bail policies, instead detaining defendants who pose a public safety or flight risk without bail. However, in the past year, some lawmakers in other states have taken the opposite approach, citing a rise in homicides and high-profile cases like the Waukesha Christmas Parade as justification.
In addition to Wisconsin, Ohio has also recently made changes to its bail policies. In November, voters approved a constitutional amendment that allows judges to consider public safety when setting bail amounts and removes the Ohio Supreme Court’s authority to establish bail-setting rules. This amendment was proposed in response to the Ohio Supreme Court’s ruling that money bail can only be used to ensure someone appears in court and that excessive bail is unconstitutional.
The spring election in Wisconsin, which includes the question about changes to the state’s bail policies, is expected to have a higher turnout among Republican voters due to their prioritization of public safety in recent polls.
Both Republicans and Democrats are working to increase interest in the typically low-turnout spring election to give their candidate for the Wisconsin Supreme Court an advantage. Currently, the court is controlled by conservative justices 4-3, and the spring election will determine if the majority flips to liberal justices.
