By Margo Kirchner
A judge today refused to dismiss a challenge to the constitutional bail amendments approved by voters in April 2023.
Dane County Circuit Court Judge Rhonda L. Lanford issued her decision from the bench at the end of oral arguments during a Zoom hearing.
Plaintiffs EXPO Wisconsin and WISDOM claim that the Wisconsin Legislature failed to follow proper procedure for placing referendum questions on the ballot because the Legislature delivered the questions to the Wisconsin Elections Commission rather than to Wisconsin county clerks.
A state statute requires that the Legislature file all proposed constitutional amendments or other referendum questions “with the official or agency responsible for preparing the ballots for the election no later than 70 days prior to the election.”
The challenge is about who or what is “the official or agency responsible for preparing the ballots.”
If plaintiffs are correct and county clerks are deemed responsible for preparing the ballots, the Legislature missed the 70-day deadline. The parties agree that the Legislature delivered the questions to the Wisconsin Elections Commission 75 days before the April 4, 2023 election, but the county clerks received them only 68 days before the election.
Defendants include the Wisconsin Elections Commission and its members and administrator. The Wisconsin Legislature intervened in the case as a defendant.
At issue are two ballot questions for amending the state constitution regarding pretrial release and bail. One question asked voters to approve expanded use of conditions imposed on an accused person released before trial. The second question asked voters to allow a court to consider various new factors in imposing cash bail on a person accused of violent crime.
A third, advisory, question is challenged as well. That question asked voters whether able-bodied, childless adults should be required to look for work to be eligible for public benefits.
Plaintiffs filed their case in January 2023 and sought to keep the questions off the April ballot. Lanford denied the plaintiffs’ motion for temporary restraining order in February, allowing the questions to go to voters.
Voters approved the amendments and the advisory question.
The plaintiffs seek a declaration that the voting results regarding the questions are invalid and that the state constitution has not been amended.
The elections commission and its members argued in their motion to dismiss that the plaintiffs lack standing, that regarding statewide referendum questions the elections commission is the responsible agency for preparing ballots, and that, even if not, strict compliance with the 70-day deadline was not required.
The Legislature argued that the court lacks authority to opine on the Legislature’s interpretation and application of the delivery and timing statute—that whether the Legislature complies with its own procedural rule is a matter for the Legislature alone, not the courts. The Legislature then echoed the commission’s arguments that the commission is the proper recipient of statewide referendum questions and that delivery to the commission substantially complied with the statute.
The Legislature added that invalidating the results of the election for “what was, at most, a minor procedural error” would be an extraordinary remedy.
When deciding a motion to dismiss, a judge must look at the facts alleged in a complaint, assume they are true, and view them in the light most favorable to the plaintiff. Lanford found that “the law does support plaintiffs’ assertions in their brief.”
The decision did not address the merits of the proper party for receipt of statewide ballot questions. That issue will be addressed through a motion for summary judgment, with supporting affidavits as evidence.
Plaintiffs are to file their motion for summary judgment and supporting materials by Jan. 5, 2024, with full briefing by all parties to be completed by the end of February.
Lanford set a hearing on the motion for summary judgment for March 19, 2024.
By Gretchen Schuldt
The definition of "serious harm" in a bill designed to impose cash bail on more people is so broad it encompasses "nearly all possible situations," a representative of the State Public Defender's Office told an Assembly committee recently.
"Serious harm" as defined in Assembly Bill 54 includes "personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm."
The definition includes terms not found elsewhere in state law, said Adam Plotkin, SPD's legislative liaison.
"Personal pain" or "injury" "could be broadly and differently interpreted to mean that even minor pain could be considered grounds to set cash bail," he said.
Plotkin testified at a public hearing on the bill held before the Assembly's Judiciary Committee. The committee last week recommended recommended, 6-1, adoption of the bill.
The measure is a companion to a proposed amendment to the state constitution that voters will consider in the spring election. That proposed amendment, marketed as a "reform," would allow judges more discretion in determining who must post cash bail to be released from pre-trial custody.
The proposed amendment would require judges to consider four new factors when determining whether cash bail should be imposed. They are the seriousness of the alleged offense, whether there is a past conviction for a violent crime, the need to protect members of the public from serious harm, and the need to prevent the intimidation of witnesses.
The bill would define as "violent crimes" offenses such as criminal damage to property, criminal trespassing, disorderly conduct, or violation of an injunction, Plotkin said.
"These...seem to go well beyond the stated intent of the amendment of focusing on violent crimes," he said.
The definitions "undermine the presumption of innocence and present issues related to excessive bail under the 8th amendment," he said. " ‘Excessive’ isn’t just a high cash bail amount, it’s a sum total of the impact. A low-level charge combined with even a low level of cash bail amount that is prohibitive of release can be excessive."
Plotkin also warned of the impacts to the court system if the bill is adopted.
"This will increase the pretrial jail population and the number of people who have non-monetary conditions imposed," he said. "It will increase the number of speedy trial demands. Both of these changes will place a significant burden on an already overtaxed criminal justice system."
The Wisconsin Chiefs of Police Association testified in favor of the bill.
"As members of law enforcement, we have witnessed violent offenders who were released from custody before the reports of their crimes were even completed. We have also heard from victims of crimes, who ask us in fear of how they can remain safe when their attackers are already back out on the streets," the organization said in prepared testimony.
Registering in favor of the bill were Americans for Prosperity, the Milwaukee Police Association, the Wisconsin Chiefs of Police Association Inc., and the Wisconsin State Lodge Fraternal Order of Police.
Registering against the bill was the ACLU of Wisconsin.
Craig Johnson, Wisconsin Justice Initiative board president, testified today at the State Capitol against a proposed constitutional amendment on cash bail.
The proposed amendment would allow more frequent use of pretrial custody and conditions for release. It also would allow judges setting cash bail amounts to consider several factors beyond a defendant’s likelihood of appearance at future hearings.
The process for amending Wisconsin’s constitution involves the Legislature passing a proposed amendment in two separate legislative sessions then presenting the amendment to voters in the form of one or more questions.
The proposed amendment regarding new changes to bail and pretrial release passed the Legislature during a first consideration in early 2022. It is now before the Legislature for the second time as Senate Joint Resolution 2 and Assembly Joint Resolution 1. If the Legislature approves the amendment quickly on second consideration, the amendment could go to voters as early as April 4, 2023.
Johnson spoke at a joint hearing of the Senate Committee on Judiciary and Public Safety and the Assembly Committee on Judiciary. His oral remarks on WJI’s behalf, provided in written form as well, included the following:
Bail and pretrial release are important public policy areas that deserve careful attention, especially considering the recent tragic and heartbreaking events in Waukesha County in late 2021. The violence and loss of life at the Waukesha Christmas parade sent shockwaves through our state. It has now prompted an examination of our bail laws. I write today to highlight certain principles that should be kept in mind as the debate on these important questions moves forward.
First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release. The problem was that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored.
The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant who is arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations, and to court commissioners and judges who make the ultimate bail decisions. Among the factors that the PSA “scores” are a person’s prior record of convictions, the type of offense they are currently facing, their history of missing court, their history of violence, their age, and their record of prior incarceration.
SJR 2 and AJR 1 propose an amendment to the Wisconsin Constitution that will allow courts to consider additional factors (beyond the likelihood to appear) in setting bail when a person is charged with certain offenses. The additional factors are set forth in the amendment and include the seriousness of the offense and the need to protect the public. However, these factors are already listed in chapter 969 of the statutes as appropriate considerations in setting the amount of bail – see §969.01(4): Considerations in Setting Conditions of Release. They are also part of the risk assessment used in many jurisdictions. It is arguably unnecessary to include them in the Constitution.
Amending the Constitution to focus more on the offense charged rather than the total risk profile of an accused person will likely result in locking up low-risk poor people before trial with high cash bail while rich people who may be dangerous can buy their way out of custody. This makes no sense and will have potentially devastating effects on moderate and low-income people who are, after all, presumed innocent. We cannot have a two-tiered justice system – one for the rich, and one for the rest of us. The U.S. Civil Rights Commission released a report last year that highlighted the economic and racial disparities in the cash bail system. It noted that, of those held in jail unable to post bail, “there were stark disparities with regards to race” (https://www.usccr.gov/reports/2021/civil-rights-implications-cash-bail).
In the last couple decades, we’ve increasingly come to rely on evidence, not emotion, in making decisions in the criminal justice system. This should be applauded, not criticized, because it results in rational decisions rather than ones driven by prejudice and fear. It’s also important to note that studies have shown strong correlations between the length of time a low or moderate-risk person spends in pretrial detention and the likelihood that they would be re-arrested later in life. In other words, detaining low-risk individuals has societal costs – it can make us less safe.
Well-informed bail decisions are made by experienced prosecutors, defense counsel, and judges – when they rely on the evidence in each case. The key is following the evidence, meaning appropriate high cash recommendations when a person’s history includes pending violent offenses, an extensive record of convictions, and a demonstrated history of missing court, as was the case with the defendant in the Waukesha Christmas parade incident. It also means release on recognizance even in some serious cases, IF the evidence shows a person is not high-risk.
It is important to remember the teaching of the United States Supreme Court from the case of Salerno v. United States, 481 U.S. 739 (1987), that “(i)n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Any proposal that violates this premise may be vulnerable to federal constitutional challenge.
Crucial evidence was missed or ignored in the 2021 Waukesha case, and the result was a tragedy. This should never happen in the future. We must make sure that future bail decisions are the result of an evidence-based, validated risk assessment that provides information to justice system professionals to make smart decisions in each case. The evidence points the way but gets the right result only if it’s not ignored.
Because this amendment puts too much focus on the offense charged and does not adequately safeguard against unnecessary pretrial detention for low-risk individuals, we urge that you reject second consideration.
As currently proposed, the amendment would be presented to voters in the form of two questions.
Johnson urged the Legislature to rewrite Question 1 if the proposed amendment advances on second consideration. Johnson noted that as currently written Question 1 is misleading and fails to fully and fairly inform voters of the amendment’s contents.
Question 1 currently asks if the Constitution should “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.”
The question fails to inform voters that the Constitution currently allows such conditions only to protect the community against “serious bodily harm” and that the amendment expands the definition of “serious harm” to anything so “defined by the legislature” at any time.
WJI believes the question needs to inform voters of this expansion regarding types of potential harm to be considered, especially regarding harm not yet even determined.
The Wisconsin Justice Initiative calls on U.S. Sen. Ron Johnson to stop airing misleading advertisements on the issue of cash bail in his race against Lt. Gov. Mandela Barnes.
“Bail and pretrial release are important public policy areas that deserve careful attention, not distortion in 30-second ads for partisan gain,” WJI President Craig Johnson said on behalf of the organization. Sen. “Johnson’s ads seem designed to scare the public, not enhance understanding of the important issue of cash bail in Wisconsin.”
WJI is a nonpartisan public advocacy organization that does not take sides in political races. Nonetheless, it’s important that the public is informed with accurate and helpful information during a heated political campaign.
“First and foremost, the public should understand that good bail decisions are made by relying on evidence. Increasingly, criminal justice professionals understand that public safety risk is best determined by following that evidence, not throwing darts at a board marked ‘cash bail,’” Craig Johnson said.
“There has never been a reform contemplated in Wisconsin in which cash bail was ‘eliminated,’ and the doors of local jails are just thrown open, as (Sen.) Johnson would have you believe,” he said.
Real reform, which has been supported in the past by Democrats and Republicans across the country, including U.S. Sen. Rand Paul and former New Jersey Gov. Chris Christie, focuses pretrial release decisions on the threat to public safety, rather than how much money a person has, Craig Johnson indicated.
“Locking up low-risk poor people before trial with high cash bail while rich people who may be dangerous can buy their way out of custody makes no sense, but Sen. Johnson doesn’t seem to understand that,” he said. He noted that the U.S. Civil Rights Commission released a report last year that highlighted the disparities in the cash bail system.
“It’s important to remember that unnecessary pretrial detention has societal costs and creates a two-tiered justice system – one for the rich and one for the poor. We should also recognize that studies have shown strong correlations between the length of time a low or moderate-risk person spends in pretrial detention and the likelihood that they would be re-arrested later in life. In other words, detaining low-risk individuals has societal costs – it can make us less safe,” Craig Johnson said.
“Sen. Johnson’s ads would have you believe that the efforts of Lt. Gov. Barnes and others in the legislature would end cash bail without a solution focusing on community safety, and that’s just not the case,” Craig Johnson noted. “He should pull his misleading ads and demand that the corporate super PACs supporting him pull their ads as well.”
The United States Supreme Court stated in Salerno v. United States, 481 U.S. 739 (1987), that “(i)n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The words were written by then-Chief Justice William Rehnquist.
“Sen. Johnson, as a member of one of the most respected political institutions in this country, should not be jumping into the gutter with these misleading and fear-mongering ads. They do not advance the dialogue on this important issue one bit,” Craig Johnson said.
He also noted the importance of accurate debate on this subject in advance of a possible constitutional amendment proposal for Wisconsin voters this coming spring.
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