What the proposed bail amendment really says

By Gretchen Schuldt

Darrell Brooks allegedly plowed into a crowd at a Christmas parade in Waukesha, killing six. He was out on $1,000 bail at the time, an amount set too low because of mistakes made by the Milwaukee County District Attorney's Office and court officials.

That incident has prompted the introduction of a proposed amendment to the state constitution that toughens bail requirements and that likely would result in the pretrial incarceration of many, many more people. And since pretrial incarceration is mostly a local cost, the cost of keeping those people locked up would fall mainly on county taxpayers, not the state.

The amendment is vague, leaving the details up to legislative action after the amendment is ratified.  

The state constitution now says "Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted."

The proposed amendment would add the following: "In fixing an amount of bail, the court may take into consideration the seriousness of the offense charged, the previous criminal record of the accused, the probability that the accused will appear in court, and the need to protect members of the community from serious harm, as defined by the legislature by law, or prevent the intimidation of witnesses." (Emphasis added.)

The phrase "serious harm" is deliberately undefined, although the measure makes clear that it goes beyond "bodily harm," a term included in the existing constitution: "All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses." (Emphasis added.)

The proposed amendment would simply strike the word "bodily" and the Legislative Reference Bureau makes clear that the word "harm" would apply to "not just serious bodily harm."

The proposed amendment also would do away with the existing requirement that monetary bail be set only when it is required to help ensure that a defendant shows up in court. Instead, the proposal would allow a court to demand cash bail in any criminal case, no matter how minor.

The constitution now reads "Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court."
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The proposed amendment would change that to "Monetary conditions of release may be imposed at or after the initial appearance.

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