The race for a state Supreme Court seat isn’t the only decision facing Wisconsin voters on April 4.
Wisconsinites are also weighing statewide referendums, including one — split into two questions — that could expand the use of cash bail. The other will gauge public opinion on work requirements for public benefits.
A pair of questions would add criteria for setting bail
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Two questions on statewide ballots are linked to a proposal to broaden the criteria that judges may use when setting cash bail.
Currently, Wisconsin’s Constitution authorizes judges to consider how likely someone is to appear in court when they’re weighing whether and how much bail to set.
The proposed amendment before voters would add additional criteria. One question asks voters whether to let courts consider the likelihood a defendant would cause “serious harm” to the community if released.
That definition of serious harm would still need to be written into state law. Under a Republican bill advancing in the Legislature, the umbrella of violent crime would extend to dozens of offenses ranging from homicide to sexual assault to burglary to violating a protection order.
The other cash bail question before voters would ask whether to amend the constitution to explicitly let courts consider factors like the need to prevent witness intimidation and a defendant’s past convictions when setting bail.
Arguments for, against changing the bail considerations
Backers say the changes will protect the public by allowing judges to consider circumstances holistically. Law enforcement groups, including the Wisconsin State Lodge Fraternal Order of Police, have testified in favor of the proposal.
“We’re seeing individuals who are arrested, put in jail, have a hearing, and ended up with a signature bond or otherwise released at a point where they go out, and they’re committing additional crimes,” said McFarland Police Chief Aaron Chapin, who spoke on behalf of the Wisconsin Chiefs of Police Association during a March committee hearing.
But Adam Plotkin, a lobbyist for the State Public Defender’s Office, believes the changes will actually make Wisconsinites less safe. He says expanding cash bail is a bad idea, since the system is often less about risk and more about who can and cannot afford to pay.
“Especially (for) poor clients who make up a majority of those going through the criminal legal system even a relatively low cash bail amount can be enough to keep them in custody, while they are still presumed innocent,” Plotkin said.
The American Civil Liberties Union of Wisconsin likewise opposes the amendments, saying they would perpetuate a “two-tiered system of justice” and may violate clauses in the U.S. Constitution guaranteeing due process and prohibiting excessive bail.
How much will change if bail amendments pass?
To a certain extent, Wisconsin judges are already considering factors like prior convictions and public safety risk while setting bail, University of Wisconsin law Professor Adam Stevenson acknowledges.
Judges are instructed to assess so-called flight risk, meaning how likely someone is to flee before court appearances. That could lead to higher bail for people accused of serious crimes with serious penalties such as homicides.
Still, Stevenson says the added criteria would likely lead to more people being incarcerated in Wisconsin, though he said he can’t predict exactly how sizable the increase will be.
For people stuck in jail, that could mean losing their jobs or being unable to provide child care, he said. It could also increase costs to taxpayers.
“Increased incarceration may not have the effect of decreasing crime,” he said. “What it could do if it does result in increased incarceration is lead to jail overcrowding, or maybe even the need to either contract out to house pretrial incarcerated folks, or build new jail facilities that are larger to be able to accommodate a more significant population.”
Much of the public conversation around bail reform in Wisconsin has centered around high-profile cases, including Darrell Brooks Jr., the man sentenced to life in prison for intentionally driving an SUV through the Waukesha Christmas Parade in 2021, killing six people. Prior to that day, Brooks had been released on a $1,000 bail for domestic violence charges. The Milwaukee County District Attorney’s Office later said a prosecutor’s bail recommendation had been set “inappropriately low.”
But Stevenson says it can be complicated to predict whether higher bail would have prevented individual tragedies.
“This bail system and the changes that are on the ballot could affect thousands, tens of thousands of people in a given time period, just a huge systemic change, and the examples we hear about are horrific and horrible and tragic,” Stevenson said. “What we don’t hear about are the hundreds and thousands of individuals who are currently out on bail, who do not commit criminal offenses, and yet they might be the ones who might be given higher bail.”
Voters also weigh non-binding referendum on welfare work requirements
A third referendum on the spring ballot asks Wisconsinites whether “able-bodied, childless adults (should) be required to look for work in order to receive taxpayer-funded welfare benefits.”
That referendum is non-binding, meaning the outcome won’t change any state policies, but its Republican backers say it’s a way to gauge public opinion. Many Wisconsinites are already subject to work requirements as a condition for certain taxpayer-funded benefits, including FoodShare assistance.
Democrats have accused Republicans of placing the bail and welfare-related questions on the spring ballot as a way to drive up conservative turnout in the crucial April 4th Supreme Court race. Although that race is officially nonpartisan, liberal candidate Janet Protasiewicz could shift the court’s ideological balance if she beats conservative Dan Kelly for a 10-year term.
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