Wisconsin Republicans Hope to Change Constitution

The nation's eyes are on Wisconsin this week as voters in the state participate in an election for the state Supreme Court that many believe will come to define the makeup of the state's judiciary for a generation.

Down the ballot, however, is a vote on several amendments to the state constitution impacting Wisconsin's recently implemented bail reforms some groups believe could be just as significant.

In one question, Wisconsin voters will be asked to decide whether judges should be given leeway to determine whether an individual is likely to cause "serious harm" when evaluating them for pre-trial release, a wide-ranging question civil rights groups believe could introduce significant gray areas into sentencing that could force potentially non-violent offenders in jail.

In another proposed amendment, voters would then be asked whether to allow a court to impose cash bail on those accused of a violent offense based on a wider range of criteria than previously allowed, 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," among others.

All introduced by the state's Republican-controlled state legislature—which has supported minimum bails of as high as $10,000 for some defendants—the suite of proposed changes comes in response to what law enforcement groups have characterized as a crime wave across Wisconsin of the likes they "have never seen before."

These include a high-profile incident involving Darrell Brooks Jr., a man who drove his SUV through a 2021 Christmas parade in Waukesha just days after posting what critics derided as a paltry $1,000 bail for charges of domestic violence.

That episode and others are what proponents describe as clear examples of the failures of policies initially designed to undo policies opponents claimed disproportionately targeted low-income populations of primarily non-violent offenders.

"The need to ensure the appearance of criminal defendants for proceedings and to protect the public from additional harm is an integral part of civilized society," Wisconsin Fraternal Order of Police Vice President Mark Sette said in testimony to members of the Wisconsin State Assembly's Committee on the Judiciary last month.

"In recent years, we have seen this important safety mechanism eroded by a faction of rogue prosecutors in a failed social experiment they call 'bail reform' and 'criminal justice reform.' A nationwide crime surge and recent tragic events, including right here in Wisconsin, have highlighted the fallacy of these policies."

The amendment's opponents, however, see the effort as misguided.

Prior to bail reform efforts across Wisconsin, nearly one-fifth of criminal defendants in Dane County—the one county in which data was widely available—could not make bail, according to an April 2018 report by the judge there. And generally, those people were disproportionately people of color, opponents claim, leading groups like the Wisconsin NAACP and others to oppose both proposed changes to the law.

Mainly, they said, because statistics don't seem to support the need for cash bail.

According to a 2019 presentation by now-retired Milwaukee County Circuit Judge Jeffrey Kremers, approximately 98 percent of those released to pretrial supervision whose cases were resolved in 2017 did not commit new violent crimes—a sign opponents of the changes claim underscores the ineffectiveness of changes to cash bail.

"The money bail system provides a false sense of security that masks the dangers it poses to public safety while also perpetuating racial and wealth bias," Dr. Kesha Moore, Senior Researcher with the Legal Defense Fund's (LDF) Thurgood Marshall Institute, said in a statement on behalf of the Wisconsin NAACP earlier this year.

The first proposed change to the constitution expanding judicial review of a suspect's likelihood to re-offend, other groups say, could be even more problematic, and potentially expand the number of incarcerated people who may not necessarily need to be in prison.

According to a critique by the Wisconsin ACLU, the proposed amendment would allow approximately 100 enumerated charges for which judges could consider the "totality of the circumstances," including what they describe as an "overbroad and hypothesized risk" of what could an accused person's risk to cause "serious harm," when setting the price of freedom for a legally innocent person, including their potential to cause mental anguish or some other factor.

"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," the organization argued.

While a lawsuit by several other organizations to stall the amendments failed earlier this year, others—like the League of Women Voters—believe the proposed changes could actually result in future legal challenges due to what they describe as the proposal's use of "ambiguous and misleading" language in the ballot questions. And the way things stand, the language of what voters are being asked to act on, critics claim, could be subject to change at any time.

"It does not, in fact, tell people what the amendment would actually do...and leaves several terms to be defined by the legislature, which hasn't been done," Sue Jennik, the Chair of the League of Women Voters of Wisconsin Legislative Committee told Madison's WORT Community Radio last month.

Bigger still, the group added, are the unintended consequences of such a change to the law.

"Racial disparities here in Wisconsin are already abysmal," the League of Women Voters told Newsweek in a statement. "The bail amendment would just be another burden falling disproportionately on Black and brown folks. Additionally, increasing the number of people in jail pretrial infringes on their freedoms and this would of course disproportionately affect people with lower income."