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The state Senate on Tuesday approved an amendment to the Wisconsin Constitution that would tweak the state’s bail system and could have major effects on Wisconsin’s criminal justice system.

The state Senate on Tuesday approved an amendment to the Wisconsin Constitution that would tweak the state’s bail system and could have major effects on Wisconsin’s criminal justice system.

Senators voted 23-9 — with all Republicans and two Democrats (Sens. Brad Pfaff, D-Onalaska, and Bob Wirch, D-Somers) voting in favor — to advance the amendment. If it is passed by the Republican-controlled Assembly on Thursday, Wisconsinites will vote on their April 4 ballots to determine if the changes to the state constitution should be made.

The amendment has been billed by Republican lawmakers as a way to get “tough on crime” in Wisconsin. Criminal law experts, though, are skeptical it would make the state safer.

“This is the first step, and it has to be the first step to fix Wisconsin's broken bail system,” said Sen. Van Wanggaard, R-Racine, the amendment’s chief author, on the Senate floor before the vote. “You can't fix the system under the current Constitution. This amendment opens the door. We can debate what the system should look like. But without the first step, without this amendment, there is no second step.”

In Wisconsin, if someone is arrested for a crime and charges have been filed against them, they appear in front of a court commissioner for an initial appearance. At that hearing, the court commissioner considers the conditions, if any, under which someone can be released while their criminal case is pending.

Posting bail can be a condition of release. However, as the state’s bail laws currently exist, judges can impose “monetary conditions of release … only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”

Put another way, a court commissioner can only set a cash bail amount if there is reason to think the person making an initial appearance might not show up for their next court date.

In the U.S. justice system, defendants are presumed innocent until proven guilty by the state.

Beyond bail, a court commissioner or judge can also set conditions to someone’s release that “protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

In some rare instances, for certain felony crimes, the Wisconsin Constitution empowers judges to deny someone charged with a crime from being released before they are convicted. 

The amendment would eliminate the requirement that “monetary conditions of release” be implemented “only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”

Instead, it would empower judges, when setting a bail amount, to consider the “seriousness of the offense charged, the previous criminal record of the accused, the probability that the accused will appear in court, and the need to protect members of the community from serious harm, as defined by the legislature by law, or prevent the intimidation of witnesses.”

It would also remove the word “bodily” from this line of the state Constitution: “All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

Two criminal law experts told the Cap Times last year that the amendment likely would not improve public safety in the state. Instead, they argued, it could further burden an already overwhelmed criminal justice system in Wisconsin.

Allowing a judge to impose bail for reasons beyond ensuring a defendant would appear at their next court hearing would likely result in more poor people being incarcerated, the two legal experts, Jessa Nicholson Goetz, a criminal defense attorney with Nicholson Goetz & Otis in Madison, and University of Wisconsin Law School professor Cecelia Klingele, said.

Accordingly, if judges are setting cash bail more often, the state will likely see more people incarcerated in county jails — often waiting months or even more than a year for their constitutionally guaranteed jury trial, they said.

The effects snowball from there. More people will be held in county jails, at taxpayers’ expense. Additionally, incarcerated people are more likely to lose their jobs and have their housing stability threatened, which can have a profound effect on their communities and families, Nicholson Goetz noted.

All the while, people charged with crimes who might be considered dangerous but can afford to post bail will continue to be released.

Wanggaard, a former police officer, first proposed making changes to the state’s bail system in 2017. However, it failed to pass in consecutive legislative sessions — a necessary step to amend Wisconsin’s Constitution — until Tuesday. Its approval last session came as the Waukesha Christmas parade killings, as well as the shooting of an off-duty police officer in Milwaukee, injected new urgency into lawmakers’ push to advance the measure. It also came as Republicans sought to make crime a top issue ahead of November’s midterm elections.

“Our current system for bail is failing to protect law-abiding citizens,” Sen. Duey Stroebel, R-Saukville, said in a statement after the vote. “(Under the amendment), critical judges are unrestricted in their ability to review the totality of the circumstances when determining bail instead of releasing dangerous criminals back on the street to commit additional crimes.”

“With the passage of (this amendment), judges will be in a better position to prevent horrific incidents like the Waukesha Christmas parade massacre and other heinous acts committed by criminals out on bail,” he continued.

Democratic lawmakers said Tuesday that the key to making Wisconsin safer is providing adequate resources to the state’s criminal justice system.

“We need funding for our courts. Not a change in our constitution,” Sen. Lena Taylor, D-Milwaukee, said during debate about the amendment. “We need prosecutors and defense attorneys and interpreters and court reporters funded. … (This amendment) does not get us those solutions.”

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