Hurrying to put the question before voters this spring, the state Senate on Tuesday and the Assembly on Thursday are scheduled to vote on a constitutional amendment that would require courts to factor in defendants’ past charges and public safety risk in setting cash bail amounts for those accused of violent crimes.
Under the state Constitution, judges can’t currently impose cash bail to prevent future crimes, only to ensure defendants appear in court. Judges may, however, add conditions to a person’s bail that seek to address public safety concerns.
The measure, SJR 2, comes as states across the country reconsider bail laws, often in a move away from cash bail, though some of those states have since reversed those changes.
Having passed both chambers last session, the proposed amendment in Wisconsin would need second approval from the Assembly and Senate before going before voters. The governor cannot veto a proposed constitutional amendment. If approved, the measure could appear on the April 4 ballot, when many local races and referendums will be decided.
Calling Wisconsin’s current bail system broken, proposal author Sen. Van Wanggaard, R-Racine, said in a statement that the measure would “give judges the flexibility to consider the totality of the circumstances when setting bail which is common sense, and a good start.”
Criminal defense attorneys and other opponents of the amendment have argued the changes will result in more people presumed to be innocent held behind bars longer because of higher bail amounts while they await trial.
In a statement ahead of a hearing on the resolution last week, the ACLU of Wisconsin said the measure would exacerbate disparities in the state’s cash bail system between those who can afford to buy their way out of jail and those who can’t and raises “significant concerns under the due process clause of the Fifth Amendment and the excessive bail prohibition under the Eighth Amendment to the U.S. Constitution.”
The due process clause states nobody may be “deprived of life, liberty or property without due process of law,” something that amendment opponents argue could occur with prolonged pretrial stays in jail.
Noting that bill opponents brought up potential due process violations, proposal author Rep. Cindi Duchow, R-Delafield, said the measure was based on other states’ bail systems.
And Wanggaard said the measure would not change the excessive bail prohibition, noting that judges would have to put on the record why they believe the amount of bail is appropriate.
Instead of bolstering cash bail, Wisconsin State Public Defender legislative liaison Adam Plotkin instead called for a system that “significantly disincentivizes the role that money plays in this system” by using a risk assessment tool and judicial discretion to determine a defendant’s pretrial release on a case-by-case basis.
The proposed measure will come before the Assembly as other states rework their bail systems. In 2021, Illinois lawmakers voted to completely do away with cash bail. But just before the law was poised to take effect this January, which would have made Illinois the first state to do away with the system, the Illinois Supreme Court stepped in and put the law on hold as prosecutors challenge the measure’s constitutionality.
California did away with cash bail for people who couldn’t afford it in March 2021 after the California Supreme Court concluded that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”
New Jersey overhauled its bail system in 2017, allowing more people to remain free while awaiting trial by doing away with cash bail in most instances.
Marginally fewer people attended their court dates after the reforms, but a New Jersey Administrative Office of the Courts report stated that was a matter of compiling data differently.
“Concerns about a possible spike in crime and failures to appear did not materialize,” the report concluded.
New York implemented a law decreasing cash bail use in January 2020 before reversing many of the changes in April 2020 after the New York Police Department presented statistics showing that crime rose after the January changes.
Attorneys, including public defenders, pushed back, saying the New York City police officers were bail reform opponents who were arresting more people to create a false narrative.
Advocates have for years pushed for the elimination of cash bail, saying that cash bail particularly affects people of color.
In a 2019 report, left-leaning Prison Policy Initiative research director Wendy Sawyer found that nonwhite defendants are 10% to 25% more likely than white defendants to be detained before trial or have to pay cash bail.
“Black and brown defendants receive bail amounts that are twice as high as bail set for white defendants — and they are less likely to be able to afford it,” she said