Bail reform amendment gets hearing, nears ballot

MADISON, Wis. — A constitutional amendment that would change how judges set bail in Wisconsin moved forward Tuesday as the Republican-controlled Legislature hopes to pass the resolution in the coming weeks in order to get the proposal on the April ballot.

The proposal would give judges more leeway to set the bail conditions for defendants. Currently, judges have more-limited parameters: they can set cash bail to ensure that a defendant will return for their court date and set additional conditions like no-contact orders to protect the public from “serious bodily harm” and to prevent witness intimidation.

The change would allow judges to set bail amounts based on a defendant’s past convictions and whether the judge believes the higher bail amount is necessary to protect the public against “serious harm.” Proponents say this allows higher bail amounts to be set for violent criminals.

“Under our proposal and for violent crimes, only judges will have the flexibility to determine bail based on the totality of the circumstances,” said Sen. Van Wanggaard, R-Racine, one of the resolution’s authors during a hearing on the bill Tuesday.

“I think it gives the judge those flexibilities but it also puts accountability into the process so that judges are going to have to articulate why they’ve done what they’ve done,” he added.

The proposal comes amid renewed criticism over low bail that was at the forefront of the debate over the defendant in the Waukesha parade tragedy, and questions of whether the tragedy would not have happened if his bail were set higher.

READ MORE: Did domestic violence past, low cash bail lead to tragedy in Waukesha?

The push also comes over criticism from Democrats over the cash bail system itself. Sen. Chris Larson, D-Milwaukee, questioned during the hearing whether increasing the prominence of cash bail in the criminal justice system would create a two-tiered system.

“Why are we not reforming the system to say if somebody is a risk to the community, they will be held in pretrial detention because they’re a risk regardless of the amount of money that they have?” Larson said. “Otherwise to say, ‘Well, you can you can pay your way’ — this is making sure that people who are poor will not be able to be released.”

The proposal’s authors indicated that would be a non-starter, however.

“We did look at some people that brought up eliminating cash bail, and that really was not a consideration — I wouldn’t support that,” Wanggaard said. “I think we need to have that in place.”

Speaking to reporters Tuesday in Watertown, Gov. Tony Evers said bail reform is an issue on which he believes lawmakers can find common ground.

“I think there’s a need for bail reform, I just frankly don’t understand why we don’t do it in a bill and get it done and get all the stakeholders involved,” he said.

The Senate is expected to vote on the resolution as early as next week. Constitutional amendments in Wisconsin must first pass the Legislature in two different two-year sessions before they reach the ballot as referenda. The amendments are passed as joint resolutions — meaning the governor does not get to veto the proposals.

This session is the second time the bail amendment is being considered, and Republicans are hastening the process in order to meet a Jan. 24 deadline for the amendment to appear on the ballot this April.