(CN) — Two sets of ballot questions will be put to Wisconsin voters in the battleground’s closely watched state supreme court election next week, one of which could amend the state’s constitution to broaden what judges can consider when determining a defendant’s cash bail.
After passing a second consecutive session of the Wisconsin Legislature in January, a proposed constitutional amendment championed by Republicans that would allow judges to consider a defendant’s criminal history and threat to public safety when considering their bail now must pass muster with voters in the form of two questions on an April 4 ballot that features a critical race for a seat on the Wisconsin Supreme Court.
One question asks whether judges should be able to impose bail conditions “designed to protect the community from serious harm.” The other more generally asks if judges should be able to consider the “totality of the circumstances” when determining bail for someone accused of a violent crime, including the defendant’s past convictions of violent crimes as well as “the need to protect the community from serious harm and prevent witness intimidation.”
Wisconsin law currently allows judges to set cash bail only to ensure a defendant reappears in court. Judges can already consider threats of “serious bodily harm” and witness intimidation when conditioning release before conviction overall, but the amendment would change that constitutional language to the less clearly defined “serious harm” terminology.
Republicans say the amendment is a common-sense reform to give judges flexibility to consider more than an alleged violent offender’s flight risk when deciding how much they should have to pay the court to be free ahead of trial.
Democrats generally oppose the measure, arguing it further entrenches a flawed cash bail system that fails to prevent crime at the same time it disproportionately harms low-income and minority defendants and their communities, while failing to define vague terms like “serious harm” in the amendment.
Peripheral to this debate is the case of Darrell Brooks, a man with an extensive criminal history who in November of 2021 was freed on $1,000 bail in a Milwaukee domestic violence case less than two weeks before he killed six and injured dozens driving his SUV through a Waukesha Christmas parade. Advocates for the amendment say it is important regardless of Brooks.
Representative Cindi Duchow, a Delafield Republican who has been working on the measure since at least 2017, says the amendment puts “specific, limited tools in a court’s toolbox” to hold accountable both judges handcuffed by current law and violent offenders who commit new crimes while free on bond.
While tough-on-crime GOP efforts to expand cash bail have recently gained steam nationwide, some liberal-leaning areas like New York, California and Illinois have moved to curtail the practice or end it altogether, though the Illinois effort to abolish cash bail stalled in December when a judge ruled it was unconstitutional.
Paru Shah, a political science professor at the University of Wisconsin-Milwaukee, echoed opponents’ concerns that the amendment would increase already high rates of pretrial detention of defendants – disproportionately Black and Latino, research shows – because they can’t afford their bail, all without improving public safety, as shown in other studies.
Victoria Lupo, associate director of the Criminal Justice Data Analytics program at Marquette University, seconded many of these concerns. She said that amendment or not, there will continue to be many individuals pleading guilty to crimes they may not have committed just to get out of jail, adding that the destabilizing nature of pretrial detention increases someone’s likelihood of re-offending “by way of removing pro-social supports and exposing them to anti-social influences via detention.”