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.

March is Women’s History Month, which means I’m often asked to name the most pressing issue facing women in America. Answers spring to mind, sometimes faster than I can form the words. The fall of Roe and the Black maternal mortality crisis. The persistence of the gender wage gap and on-the-job sexual harassment, more than five years after #MeToo. Barriers to safe, affordable housing. Policing of Black and Brown mothers, leading to needless family separation. The lack of universal paid family leave coupled with the skyrocketing cost of childcare. The list goes on.

None of these ills, however, is the subject of so-called “Women’s Bill of Rights” laws being introduced in a growing list of states including Kansas, Arizona, South Carolina, Oklahoma, and Montana. Instead, this legislation would create a legal definition of womanhood based on the capacity to produce ova, or human eggs. This definition of “woman,” which is gerrymandered to exclude trans women and girls, would then apply throughout state law — and could make it impossible for trans people to live openly at work, at school, or anywhere in the states they call home.

That should set off alarm bells for all of us, not just those engaged directly in the struggle for LGBTQ rights. The “Women’s Bill of Rights” is only a sliver of the cruel campaign to deny basic rights to trans people currently underway across the country. And despite its misleading label, it shares a through-line with a long and ugly history of gender-based subjugation in the name of “biology.” For centuries, laws and policies premised on women’s biological capacities and “delicate” nature were used to shut women out of educational, economic, and civic opportunities. On these grounds, the U.S. Supreme Court upheld laws barring women from becoming attorneys — or bartenders. Similar “biological” arguments were used to exclude Black women from “the fairer sex” in order to justify extraction of Black women’s labor under the institution of slavery and beyond.

As feminists, we reject efforts to appropriate the rhetoric of “women’s rights” to inflict life-threatening harm on trans people, men or women. Attacking trans people does nothing to address the real problems women face. To the contrary, limiting freedom for trans people worsens conditions for all women by re-entrenching the very gender stereotypes that have underpinned centuries of women’s oppression and that the ACLU Women’s Rights Project has worked for more than half a century to dismantle. After all, the very notion that a person should identify with the sex they were assigned at birth for their entire life is a stereotype, as the more than 1.5 million trans people living in the United States attest to every day.

Formed in 1972, the Women’s Rights Project’s earliest cases focused on establishing rigorous judicial review of laws that classified people on gender lines, often based on long-held stereotypes about men’s and women’s capacities and without regard to individual abilities, needs, and wants. That work, led by Ruth Bader Ginsburg for the ACLU, included challenging a probate rule that preferred men to women based on the stereotype that any man is more capable of settling an estate than every woman; a housing allowance offered to servicemen, but not servicewomen, based on the stereotype that men should be primary breadwinners; and an income tax deduction available to women, but not men, based on the stereotype that only women should be caregivers.

The plaintiffs in these cases included men as well as women. What they had in common was that each defied gender stereotypes, out of desire or necessity. And all fought to live fully and authentically, without laws and policies that constrained them based on gender or their ability to bear children. To live openly as transgender is to seek that same freedom.

Not only is there no conflict between demanding rights for women and for all transgender people, advances in trans rights hold a specific promise for women’s liberation. By tearing down laws and policies based on gender stereotypes, we can create the opportunity for each of us to determine our own life story. That’s why the Women’s Rights Project strives to represent people of all genders, transgender, nonbinary, and cisgender, who face barriers based on their sex.

Today’s avalanche of attacks on trans people, with over 400 anti-LGBTQ bills introduced in state legislatures in 2023 so far, makes plain that the gender discrimination of the past is all too present today. Defending trans people is not only a moral duty for the feminist movement; it is central to it.