On April 4, Wisconsinites will vote for a new state supreme court justice, with huge stakes for gerrymandering, abortion rights, and other salient issues. On the ballot in the same election are two proposed constitutional amendments on access to bail. They have received significantly less attention and attracted only limited opposition, but their effect on the right to pretrial release in Wisconsin could be significant.
The Historical Foundations of Bail and Pretrial Release
Most state constitutions have protected the right to pretrial release since our country’s founding. These provisions were based on the Pennsylvania Colony’s 1682 Charter of Liberties and Frame of Government, and they usually articulated the same basic concept: “All persons shall be bailable,” meaning released subject to conditions, “by sufficient sureties, except for capital offenses or when the proof is evident or the presumption great.” At their core, they are based on the idea that the presumption of innocence should protect defendants during the time between charge and conviction, providing defendants with a right to release under some set of conditions, monetary or otherwise, in most circumstances.
In the two centuries after the United States was founded, these provisions were stylistically and superficially amended, though the fundamental protections remained the same. In interpreting the provisions, state courts arrived at a spectrum of different outcomes, the most significant of which determined whether the right to bail was absolute or conditional, such that courts could deny it in instances where the court believed no amount of bail would guarantee — depending on state law — the defendant’s return to court, the safety of the public, or the integrity of judicial processes.
Restricting the Right to Release
But beginning in the 1970s, during the height of the “war on drugs” and the dominance of punitive policymaking, legislators proposed amendments to state constitutions that diluted these protections. The proposed changes included rescinding any right to release, under any condition, for defendants who were determined to endanger the safety of their community, those charged with felonies when the proof of guilt was great, and those charged with sexual offenses.
Moreover, even with respect to defendants who were still entitled to pretrial release, legislators proposed changes that functionally limited access to it. Many proposed constitutional amendments requiring that courts consider, in determining the conditions of release, what was likeliest to guarantee the defendant’s appearance, protect witnesses, and keep the broader community safe. Today, in nearly every state, judges consider their view of a defendant’s “dangerousness” when determining whether they should be released prior to trial, and under what conditions.
As these amendments were first proposed, civil liberties groups strongly opposed them, arguing that the amendments would strip criminal defendants of their constitutional rights. Though some amendments failed, most passed — many of them overwhelmingly. As a result, state legislators in some states have repeatedly gone back to tighten the provisions.
Modern Reforms — and Rollbacks
In the past several decades, many jurisdictions have reformed their bail systems to reduce the overuse of pretrial detention. These reforms run the gamut from eliminating cash bail for certain offenses or promoting unsecured bail, to introducing pretrial services programs or using risk assessment tools. In the wake of increases in violent crime during the pandemic, law enforcement and reactionary elected officials have pushed back on many of these reforms.
Wisconsin provides a case study for how these provisions have developed and how the public response has shifted. Prior to 1981, the Wisconsin Constitution included a fairly typical provision in Article I (“Declaration of Rights”), Section 8: “all persons shall before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great.” That mirrored the historical framing of bail, discussed above.
In 1981, the legislature proposed, and voters ratified, an amendment to Section 8, which remains the current text in the constitution. The legislature stripped out the right to release entirely, replacing it with a statement that defendants “shall be eligible for release under reasonable conditions.” Importantly, courts could still only impose monetary conditions — that is, the requirement that a defendant post money either up front or through a bond before being released — if they concluded that “there is a reasonable basis to believe” that imposing those conditions was “necessary to assure appearance in court.” Separately, the legislature was empowered to authorize courts to temporarily deny release to those accused of certain specified crimes, including murder, sexual assault, and certain other violent felonies.
At the time, proponents of the change argued that the existing bail system allowed violent criminals to escape detention and potentially commit more crimes prior to their trial. But the change attracted considerable opposition from both civil liberties groups and prosecutors, including the Wisconsin District Attorneys Association. Then-Dane County District Attorney (and future governor) Jim Doyle warned that the amendment’s requirements of court hearings to determine eligibility for bail would tie up the state courts and add too much to trial courts’ dockets. But despite the broad opposition, the amendment easily passed, winning 73 percent of the vote.
Wisconsin’s Latest Proposal
A new change to Wisconsin’s bail laws is up for popular vote this April. In response to consistent polling that shows a majority of Wisconsin voters are concerned about crime, the GOP-controlled legislature has proposed two separate changes to the constitution with bipartisan support. The move to change the law gained particular momentum in 2021 after Darrell Brooks killed six people after being released pending trial despite a lengthy criminal history. Both amendments reduce the discretion of courts and increase the legislature’s power to deny pretrial release entirely.
The first amendment, on the ballot as Question 1, maintains the requirement that the conditions of defendants’ release be calculated to “protect members of the community” from harm, but it eliminates the requirement of “serious bodily harm” and replaces it with “serious harm.” It is left to the legislature to define that critical term.
The second amendment, Question 2, would for the first time allow judges to consider potential risks to public safety, including criminal history, when setting money bail for a defendant accused of a violent crime. If Question 2 passes, courts could impose high money bail requirements after assessing whether the defendant has a prior conviction for a violent crime or whether there is a need to protect the community or prevent witness intimidation. Of note, the legislature is currently considering whether to greatly expand the list of violent crimes that may qualify under the proposed amendment. Release, in other words, would increasingly be tied to someone’s ability to pay for it — a step backward after years of often bipartisan progress toward eliminating that dynamic.
Though groups including the ACLU of Wisconsin and the Wisconsin Public Defender’s Office opposed the amendments as they made their way through the legislature, the electoral campaign has been decidedly lopsided — little formal opposition has emerged, and both supreme court candidates have endorsed the amendment.
In an era in which the purpose of bail is being questioned and many reformers are pushing for the abolition of cash bail, the likely passage of these amendments speaks to the current political moment, in which public concerns about rising crime are weakening what had become a bipartisan consensus in favor of criminal justice reform. But with many Democrats nationwide backing off from the reform proposals that they had supported until 2020, the passage might say more about the unwillingness of Democrats to defend bail reform. In any event, these changes, if adopted, are simply the latest in a long line of constitutional amendments that have severely limited — or eliminated altogether — the right to bail.
Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School. The views expressed are the author’s own and not necessarily those of the Brennan Center.