Wisconsin bail referendum questions: What they're about, who supports them and who could be most affected by them?
Voters on Tuesday will decide on two constitutional amendments that would expand the criteria for setting cash bail.
The expansion, which will be presented as a pair of referendum questions, has sparked debate on the issues of public safety, the rights of those charged with crimes and who could be most affected by these changes.
Here’s what voters need to know:
What are the bail amendment questions?
This referendum is broken into two questions, both dealing with what can happen to a defendant in the time between when they're charged with a crime and when they're convicted.
The first question says, “Conditions of release before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?”
The second question says, “Cash bail before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, including the accused’s previous convictions for a violent crime, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation, and potential affirmative defenses?”
Voters can respond yes or no on each question.
What does the Wisconsin constitution currently say about bail?
“There’s two parts to the discussion about bail in Wisconsin,” University of Wisconsin-Madison law professor Adam Stevenson said. “One is what, if any, cash is required for release and the other is what conditions or rules do folks have to follow when they are out in the community on bail.”
Before conviction, anyone charged with a crime is eligible for release under “reasonable conditions," according to the state constitution. These include how likely the defendant is to appear in court, protecting members of the community from "serious bodily harm" and preventing witness intimidation.
The first question would change the constitution to say “serious harm” instead of “serious bodily harm.”
In Wisconsin, serious bodily harm is defined as “bodily injury which causes or contributes to the death of a human being or which creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.”
The constitution goes on to instruct judges to set bail based on flight risk — the likelihood someone will flee before court appearances.
The second question would broaden those considerations to the “totality of circumstances” to include things like prior convictions for a violent crime and witness intimidation, among the others listed in the question.
The Legislature has passed a bill defining “violent crime” and “serious harm” — including financial, mental and emotional harm in the definition of "serious harm" — but Gov. Tony Evers hasn't acted on it.
Who's supporting the bail amendments? Who's opposing them?
Both candidates in the Wisconsin Supreme Court race, Daniel Kelly and Janet Protasiewicz, support the amendments, making that their one point of agreement in their debate earlier this month.
Proposals to put the bail questions on the ballot were supported by Republican lawmakers, as well as some Democrats in both the Senate and Assembly.
Republican sponsors Sen. Van Wanggaard and Rep. Cindi Duchow argue the definition of "serious bodily harm" is too narrow.
Law enforcement groups like the Wisconsin State Lodge Fraternal Order of Police endorse the changes.
“We have listened to the pleas of victims asking us why we cannot protect them from their attackers who are back on the street,” the Fraternal Order of Police said in a statement. “We believe that these changes would offer the courts more latitude in imposing the necessary pre-trial conditions of release, including cash bail if necessary, to assist law enforcement officers in keeping our communities safe.”
Those who oppose the changes say the amendments would do little to address public safety and would harm lower-income people. The Wisconsin chapter of the American Civil Liberties Union said Wisconsin’s reliance on cash bail has “perpetrated a two-tiered system of justice.”
“There is no question that we all want to live in safe communities without fear of violence. There is also no question that the cash bail system is broken,” Rep. Sue Conley (D-Janesville) said in a statement. “However, we must invest in proven strategies to reduce violent crime and recidivism. Our justice system should not continue to favor those with the resources to post bail.”
More: Voting 'yes' on constitutional amendments on bail will make Wisconsin safer
More: Wisconsin voters may weaken their constitutional right to bail
What could be the effects of these changes?
Unlike the welfare referendum on the same ballot, which is advisory only and would have no effect, these referendums would actually result in changes statewide. They could include higher bail amounts and higher rates of pretrial detention.
“The critical question is just how significant that effect might be," Stevenson said. “I’d be remiss if I don’t say, just given the way the criminal legal system disproportionately impacts people of color, it would seem that not only would there be an increase in pretrial detention, but most likely an increase and likely disparate increase in the pretrial detention of people of color."
Stevenson said that the increase in pretrial detention can be disruptive in defendants’ lives when it comes to things like employment or child care, but he said he also wonders about the burden that increasing the jail population could have on Wisconsin’s jail system.
“There is also concern about potential fiscal impacts, potentially needing increased jail space, other buildings,” he said.
Where did the referendums come from?
The bail amendments were introduced last year in response to the Waukesha Christmas Parade tragedy, when a Milwaukee man free on $1,000 bail in a felony domestic violence case drove an SUV through the parade route, killing six people and injuring more than 60 others.
While public discussion of these amendments has been focused on high-profile cases, Stevenson said voters and lawmakers should consider both high-profile cases and cases that most don’t hear about.
“We also need to be mindful of the broader context of just how many people are considered for bail in a given week, given year in trying to figure out a balance between public safety for those significant cases," he said, "but also the prevention of harm to presumed innocent individuals who might be incarcerated and very-well-may-be innocent individuals who might be incarcerated pretrial and have significant disruption to their lives.”
A constitutional amendment must pass two consecutive legislative sessions and then be approved by voters.
Referendums are increasingly being used by both political parties, particularly with nonpartisan spring elections, which don't usually generate great voter turnout, said Barry Burden, a University of Wisconsin-Madison political science professor.
"These elections just don't generate the same level of media coverage or public discussion so these gimmicks are one way to get the attention of the voter," Burden said. "The effect on overall turnout probably won't be great, but in Wisconsin, most people assume elections are going to be close, so even a change in the balance of things by a percentage point or two could tip the race and tip the balance of the Supreme Court itself."
If a nonbinding marijuana referendum was on the ballot, it might bring out younger, more liberal voters, Burden said, while welfare or bail reform could draw older voters.
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This article originally appeared on Milwaukee Journal Sentinel: What to know about Wisconsin's bail referendum questions for election
