“Utilizing the proposed Bail Reform Amendment would allow judges to consider the totality of the circumstances when setting bail for violent crimes including the seriousness of the offense charged, previous convictions for violent crimes, the probability the accused would fail to appear in court, the need to protect members of the community from serious harm, prevent witness intimidation, and potential affirmative defenses of the accused.”

By State Rep. Kevin Pedersen, Speaker Pro Tempore, State Representative 40th Assembly District

According to the non-partisan Legislative Reference Bureau (LRB), legislative passage of a constitutional amendment is the first step in the process of amending the constitution. Article XII, section 1, of the Wisconsin Constitution stipulates that amendments to the constitution must be adopted by two successive legislatures and then ratified by the electorate in a statewide election.

Any proposed constitutional amendment is introduced as a joint resolution in either the assembly or the senate. Unlike bills, constitutional amendments are not submitted to the governor for approval. Instead, Wisconsin voters determine whether the resolution amends Wisconsin’s Constitution.

With the increase of violent crimes being perpetrated by offenders out on no bail or low bail, Assembly Joint Resolution 1 (AJR 1) was given its second consecutive session debate on the Assembly floor Jan. 19. The proposed constitutional amendment updates Wisconsin’s constitutional restrictions on bail to put them more in line with the rest of the country.
The meaning in the Wisconsin Constitution regarding bail is interpreted by both judges and court commissioners to disallow a defendant’s past criminal convictions from being used in setting bail amounts. Bail can only be imposed to assure appearance in court, protect members of the community from “serious bodily harm,” or “prevent the intimidation of witnesses.” Serious bodily harm is a legal term meaning an injury that creates “substantial risk of death.” Serious bodily harm does not include acts such as child molestation or human trafficking.

Utilizing the proposed Bail Reform Amendment would allow judges to consider the totality of the circumstances when setting bail for violent crimes including the seriousness of the offense charged, previous convictions for violent crimes, the probability the accused would fail to appear in court, the need to protect members of the community from serious harm, prevent witness intimidation, and potential affirmative defenses of the accused.

The initiative will appear on this spring’s ballot as two questions for voters to consider. The first question concerns a court’s ability to impose conditions of release to keep the community safe. Under current law, judges can only place restrictions on someone to prevent another person from “serious bodily harm,” meaning injury with a risk of death or permanent disability. As a result, a judge can’t prohibit a child sex offender from going near a playground or school, or similar crime-specific restrictions. This amendment’s passage would allow judges to consider “serious harm” when setting conditions of bail. The question is copied below.

QUESTION 1: “Conditions of release before conviction. Shall section 8 (2) of article I of the constitution 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 second question considers which circumstances a judge can consider when setting bail, including a prior history of violent crime and the need to protect the community from harm. Only in Wisconsin are judges restricted to considering flight risk as the sole factor when setting bail.  The amendment’s passage would allow judges to consider a person’s criminal history and the interest of public safety when considering the appropriate bail. You can read question 2 below.
QUESTION 2: “Cash bail before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, 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?”

The amendment passed the Assembly on a bi-partisan vote. I voted yes because we need to give judges the tools to keep dangerous criminals out of the community while awaiting trial. Now it’s up to Wisconsin’s voters on Tuesday, April 4, to adopt or reject this amendment to Wisconsin’s Constitution.