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Bail reform in hands of Wisconsin voters in critical high court election

If passed, one ballot measure could expand the state’s cash bail system in its constitution. Another will illuminate voters’ feelings on work search requirements for benefits like food stamps.

(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.”


On top of overcrowding issues at jails like Milwaukee County’s, Lupo further offered that pretrial services programs could do more to protect public safety than cash bail, which empirical evidence does not convincingly link to a decrease in crime. Cash bail doesn’t address the root causes of crime anyway, Lupo explained.

“The expansion of cash bail will do nothing to address the question of why so many people end up in the criminal justice system. It will only increase the number of individuals who end up there,” she said.

Both experts considered the wording of the bail amendment questions to be problematically confusing and open-ended. The Republican-controlled Wisconsin Legislature last week passed legislation clarifying the amendment somewhat, including what counted as a “violent crime,” though Democratic Governor Tony Evers could veto the bill, unlike the amendment itself.

Representative Dora Drake, a Milwaukee Democrat who previously worked in pretrial services, opposes the amendment. She said JusticePoint and similar state services providing defendants with avenues to things like drug treatment, trauma-informed mental health care and diversion programs use evidence-based approaches that positively impact public safety, but they are understaffed and underfunded.

A separate ballot question on work requirements – an advisory referendum that asks voters’ opinion on something without having any immediate legal effect – reads: “Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?”

Laws on the books already require such recipients of benefits like food stamps and unemployment insurance to seek work according to certain criteria. Other benefits that are either taxpayer-funded, buttressed by federal funding or some combination, like home energy assistance and school breakfast and lunch programs, are often tied to income as a percentage of poverty levels.

Wisconsin Assembly Majority Leader Tyler August, a Republican from Lake Geneva who helped introduce the referendum this session, said it is necessary at least in part because Evers has stymied Republicans’ efforts to enforce the current laws to address statewide labor shortages.

August pointed to the fact that during the last legislative session, Evers vetoed a package of bills Republicans passed to remedy workforce issues, including by indexing unemployment benefits to the unemployment rate and snipping unemployment benefits for beneficiaries who are offered but skip job interviews. Evers compounded that damage, August said, by continuing a waiver of work search requirements for Wisconsin’s FoodShare benefits first implemented at the federal level in response to the Covid-19 pandemic.

A representative with the Wisconsin Department of Health Services confirmed on Monday that the FoodShare work search requirement remains waived for now.

The referendum, August hopes, “will provide pressure on Governor Evers to work with the legislature on workforce development issues.”

Assembly Minority Leader Greta Neubauer of Racine called the referendum “a political stunt,” and other Democrats have deemed it a ploy to juice voter turnout for a high-stakes Wisconsin Supreme Court contest in an off-cycle election, when turnout is typically low.

Madison-based progressive law firm Law Forward sued in January to keep both the bail and benefits measures off the ballot, but Dane County Circuit Court Judge Rhonda Lanford denied the injunction request in February.

Wording could be an issue with the referendum question as well, said Amber Wichowsky, a political science professor at Marquette University.

“It’s a generic sort of question,” Wichowsky said, that does not address legal specifics or developments since the pandemic. There also is a body of research making clear that “welfare” is a loaded term which polls worse than something like “public assistance for the poor,” she added.

“It’s a politically charged term. It conjures up a lot of things for voters,” Wichowsky said.

Categories:Civil Rights, Government, Politics, Regional

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