WJI urges legislative committeeS to reject constitutional changes to cash bail

​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.