Currently under the state constitution, a court may set conditions of pretrial release for a person charged with a crime to “assure their appearance in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses.” Cash bail can only be imposed by a court to ensure that an individual charged with a crime will return to court.
The constitutional amendments proposed in these referendum questions would change that, expanding factors courts consider when setting non-monetary conditions of release and cash bail, exacerbating the compounding harms caused by pretrial incarceration to individuals, families, and communities.
Let’s take a look at each of these questions individually and break down what they ask of voters.
Question 1: 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?”
This question is essentially asking whether judges, when setting non-monetary conditions of pretrial release, should be permitted to take into account the probability of an individual causing “serious harm.” While this may seem reasonable on its face, it’s missing some crucial context that warrants consideration.
What constitutes “serious harm” is worth a closer look. The Wisconsin State Legislature just passed a trailer bill that would define what qualifies as “serious harm” that courts may consider if the referendum passes. This new definition would encompass broad categories like “any impairment of physical condition,” “emotional harm” or “mental anguish.” It would even extend to instances of property damage and economic loss. This language is so expansive that it’s not at all clear how to distinguish between harm that is “serious” and harm that isn’t.
Question 2: 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?"
This measure, if passed, would allow judges to weigh more factors when imposing and setting cash bail. The trailer bill includes over 100 enumerated charges for which judges could consider the “totality of the circumstances,” including the overbroad and hypothesized risk of “serious harm,” when setting the price of freedom for a legally innocent person. The greater ambiguity will surely lead to heightened use of cash bail, driving more and more people – primarily poor people and people of color – into jail before they’ve been convicted of any crime.
Including additional factors impedes Wisconsinites’ presumption of innocence in a big way, as pretrial detention significantly increases the likelihood of a conviction, mostly through increased guilty pleas. Across the country Black and Brown defendants are more likely to be held pretrial. Compared to similarly situated non-detained peers, people detained pretrial are more likely to plead guilty, more likely to be convicted, more likely to be sentenced to jail, and more likely to have longer sentences if incarcerated. Expanding cash bail at the front door of our criminal legal system will further entrench the profound racial disparities that exist throughout the system.
Cash bail creates a two-tiered system of justice and doesn’t make us safer.
Wisconsin’s reliance on cash bail has perpetuated a two-tiered system of justice: one for the wealthy and one for the rest of us. These referendum questions propose amendments to the Wisconsin Constitution that would exacerbate inequities in the state’s cash bail system and raise 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.
We cannot talk about cash bail without acknowledging how mass incarceration in the United States and Wisconsin is, in part, fueled by policies and practices that cage human beings for merely being charged with a crime. More than 400,000 people in the U.S. are currently being detained pretrial – almost half a million Americans are behind bars while still being legally innocent. In 2015, pretrial detainees constituted 47% of the total jail population in Wisconsin. And research indicates that Black and Brown defendants are more likely to be incarcerated pretrial.
And getting “tougher” on bail won’t make us safer. Reforms that have limited the use of cash bail have not reduced public safety. On the contrary, studies show that being detained for three days makes the lowest-risk defendants less likely to appear in court and more likely to commit a crime. One study even indicated that cash bail was correlated with a 6 to 9% increase in recidivism.
Aside from the obvious financial strain, people who are stuck in jail because they can’t afford their freedom also face a slew of other collateral consequences. Even just a few days in jail can cost people their jobs, their housing and, in some cases, even their parental rights are put in jeopardy. The loss of stability caused by pretrial detention – in addition to the immense direct physical, emotional and psychological distress of incarceration – is enough to make some people plead guilty to crimes they didn’t commit.
If we’re going to reform cash bail in Wisconsin, we should be focusing on reducing our dependence on it, not doubling down on an unfair system that we know doesn’t work. We could be exploring alternatives to cash bail, shifting away from a system predicated on buying your freedom. These amendments would take us backwards and reinforce some of the worst aspects of our criminal legal system. Let’s vote no.