Wisconsin Question 2, Conditions for Cash Bail Amendment (April 2023)

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Wisconsin Question 2
Flag of Wisconsin.png
Election date
April 4, 2023
Topic
Law enforcement
Status
Approveda Approved
Type
Constitutional amendment		Origin
State legislature

Wisconsin Question 2, the Conditions for Cash Bail Amendment, was on the ballot in Wisconsin as a legislatively referred constitutional amendment on April 4, 2023. It was approved.[1][2]

A "yes" vote supported amending the state constitution to authorize judges to consider the totality of the circumstances when imposing and setting cash bail for persons accused of violent crimes, including circumstances related to:

  • a previous conviction of a violent crime, 
  • the probability the accused will not appear in court,
  • the need to protect the community from serious harm as defined by the state legislature,
  • the need to prevent witness intimidation, and
  • the potential affirmative defenses of the accused.

A "no" vote opposed this amendment, thereby maintaining the existing conditions for imposing cash bail, which are ensuring an accused person's appearance in court, protecting members of the community from serious bodily harm, and preventing the intimidation of witnesses.


Election results

Wisconsin Question 2

Result Votes Percentage

Approved Yes

1,186,025 67.57%
No 569,286 32.43%
Results are officially certified.
Source

Overview

What did Question 2 change about cash bail in Wisconsin?

See also: Text of measure

Question 2 amended Section 8(2) of Article I of the Wisconsin Constitution to authorize judges to consider the totality of the circumstances when imposing and setting cash bail for persons accused of violent crimes, including circumstances related to:

  • a previous conviction of a violent crime as defined by the legislature,
  • the probability the accused will not appear in court,
  • the need to protect the community from serious harm as defined by the state legislature,
  • the need to prevent witness intimidation, and
  • the potential affirmative defenses of the accused.[2]

At the time of the election, the state constitution authorized judges to consider ensuring an accused person's appearance in court, protecting "members of the community from serious bodily harm," and preventing the intimidation of witnesses when they considered cash bail.[2]

How were Questions 1 and 2 related?

The Wisconsin State Legislature voted to refer two ballot measures to the April ballot that amend section 8(2) of Article I of the state constitution. Question 1 removed the word bodily from serious bodily harm in the section that governs the conditions a judge imposes on an accused person released before conviction. The amendment also allowed the state legislature to define serious harm. Question 2 amended the same section of the state constitution to allow judges to consider a previous conviction of a violent crime, the probability the accused will not appear in court, the need to protect the community from serious harm as defined by the state legislature, the need to prevent witness intimidation, and the potential affirmative defenses of the accused when setting cash bail.

State Rep. Cindi Duchow (R-99), who sponsored the proposed change, said, "We’re making a common sense change to give judges all the information they need when setting bail for a violent offender. Right now, in the state of Wisconsin, how you set bail is you look at what kind of monetary incentive you’re going to need to ensure their appearance in court, you don’t take into account the dangerousness to the community and you don’t take into account their past criminal convictions."[3]

State Rep. Sue Conley (D-44), who opposes the change, said, "There is also no question that the cash bail system is broken. However, we must invest in proven strategies to reduce violent crime and recidivism. Our justice system should not continue to favor those with the resources to post bail. We need to look at successful models that better assess risk and develop a long term, evidence-based solution to the problem."[4]

Who supported and opposed Question 2?

See also: Support and Opposition

Question 2 was sponsored in the state legislature by State Sen. Van Wanggaard (R) and State Rep. Cindi Duchow (R). It received endorsements from the Wisconsin Chiefs of Police Association, Americans for Prosperity, and Wisconsin State Lodge Fraternal Order of Police. During a hearing for the bill, Sen. Van Wanggaard (R) said, "The proposed amendment also broadens the factors that a judge can consider when setting a monetary condition for release, or cash bail for violent crimes. As I said earlier, Wisconsin is the only state that only allows judges to consider a single factor when setting cash bail. Under our proposal, and for violent crimes only, judges will have the flexibility to determine bail based on the totality of circumstances."[5]

The amendment was opposed by the ACLU of Wisconsin, the Ex-Incarcerated People Organizing (EXPO) of Wisconsin, the Wisconsin Association of Criminal Defense Lawyers, and the Wisconsin Justice Initiative. The ACLU of Wisconsin said, "Wisconsin’s reliance on cash bail has perpetuated a two-tiered system of justice: one for the wealthy and one for everyone else. AJR1 and SJR 2 propose amendments to the Wisconsin Constitution that would undermine the safety and stability of people detained pretrial and their communities, exacerbate inequities in the state’s cash bail system, and raise significant concerns under the due process clause of the Fifth Amendment and the excessive bail prohibition under the Eighth Amendment to the U.S. Constitution."[5]

Have other states decided on similar ballot measures?

See also: Bail-related ballot measures (2010-2023)

Between 2010 and 2023, four states decided on similar ballot measures related to bail. In 2022, Ohio voters approved a constitutional amendment to require courts to consider factors such as public safety, the seriousness of the offense, a person's criminal record, and a person's likelihood of returning to court when setting the amount of bail. The vote margin was 77.5% to 22.5%. California, New Mexico, and Washington also decided on bail-related measures.

Text of measure

Ballot question

The ballot question for the amendment was as follows:[2]

“ 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?[6] ”

Constitutional changes

See also: Article I, Wisconsin Constitution

The ballot measure amended Section 8(2) of Article I of the Wisconsin Constitution. The following underlined language was added:[2]

(2) 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. 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, or if the person is accused of a violent crime as defined by the legislature by law, only upon a finding that there is a reasonable basis to believe that the conditions are necessary based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.[6]

Readability score

See also: Ballot measure readability scores, 2023

Using the Flesch-Kincaid Grade Level (FKGL) and Flesch Reading Ease (FRE) formulas, Ballotpedia scored the readability of the ballot title for this measure. Readability scores are designed to indicate the reading difficulty of text. The Flesch-Kincaid formulas account for the number of words, syllables, and sentences in a text; they do not account for the difficulty of the ideas in the text. The state legislature wrote the ballot language for this measure.

The FKGL for the ballot title is grade level 21, and the FRE is 13. The word count for the ballot title is 73.


Support

Supporters

Officials

Candidates

Unions

  • Wisconsin Chiefs of Police Association

Organizations

Arguments

  • State Sen. Van Wanggaard (R): "The proposed amendment also broadens the factors that a judge can consider when setting a monetary condition for release, or cash bail for violent crimes. As I said earlier, Wisconsin is the only state that only allows judges to consider a single factor when setting cash bail. Under our proposal, and for violent crimes only, judges will have the flexibility to determine bail based on the totality of circumstances."
  • State Rep. Scott Allen (R): "There are too many crimes occurring by too many individuals awaiting trial with a lengthy (criminal record). We need to take away this shield from these soft-on-crime judges that are harming our communities."
  • State Rep. Cindi Duchow (R): "We’re making a common sense change to give judges all the information they need when setting bail for a violent offender. Right now, in the state of Wisconsin, how you set bail is you look at what kind of monetary incentive you’re going to need to ensure their appearance in court, you don’t take into account the dangerousness to the community and you don’t take into account their past criminal convictions."


Opposition

Opponents

Officials

Organizations

  • ACLU of Wisconsin
  • Ex-Incarcerated People Organizing (EXPO) of Wisconsin
  • League of Women Voters of Wisconsin
  • Wisconsin Association of Criminal Defense Lawyers
  • Wisconsin Democracy Campaign
  • Wisconsin Justice Initiative
  • Wisconsin NAACP

Arguments

  • ACLU of Wisconsin: "Wisconsin’s reliance on cash bail has perpetuated a two-tiered system of justice: one for the wealthy and one for everyone else. AJR1 and SJR 2 propose amendments to the Wisconsin Constitution that would undermine the safety and stability of people detained pretrial and their communities, exacerbate inequities in the state’s cash bail system, and raise significant concerns under the due process clause of the Fifth Amendment and the excessive bail prohibition under the Eighth Amendment to the U.S. Constitution."
  • State Rep. Sue Conley (D): "There is also no question that the cash bail system is broken. However, we must invest in proven strategies to reduce violent crime and recidivism. Our justice system should not continue to favor those with the resources to post bail. We need to look at successful models that better assess risk and develop a long term, evidence-based solution to the problem."
  • League of Women Voters of Wisconsin: "Increased pretrial detention and denial of bail will: violate rights of those who are innocent until proven guilty; increase costs for local jails, including rural areas; increase racial disparity in the justice system; [and] adversely impact people with low-income."
  • Ruth Conniff, editor-in-chief of the Wisconsin Examiner: "These measures were placed on the ballot by Republicans in the Legislature after contentious political debate. They arise from the politicization of the Waukesha Christmas Parade tragedy, and they aim to change the criminal justice system so it is easier to keep people who have been arrested but not convicted of a crime behind bars as they await trial."


Campaign finance

The campaign finance information on this page reflects the most recent scheduled reports that Ballotpedia has processed, which covered through March 27, 2023. The deadline for the next scheduled reports was July 17, 2023.


See also: Campaign finance requirements for Wisconsin ballot measures

Ballotpedia did not identify any committees registered in support of or opposition to Question 2. [7]

Cash Contributions In-Kind Contributions Total Contributions Cash Expenditures Total Expenditures
Support $0.00 $0.00 $0.00 $0.00 $0.00
Oppose $0.00 $0.00 $0.00 $0.00 $0.00
Total $0.00 $0.00 $0.00 $0.00 $0.00

Media editorials

See also: 2023 ballot measure media endorsements

Ballotpedia lists the positions of media editorial boards that support or oppose ballot measures. This does not include opinion pieces from individuals or groups that do not represent the official position of a newspaper or media outlet. Ballotpedia includes editorials from newspapers and outlets based on circulation and readership, political coverage within a state, and length of publication. You can share media editorial board endorsements with us at editor@ballotpedia.org.

Support

The following media editorial board published an editorial supporting the ballot measure:

  • Wisconsin State Journal Editorial Board: "One of the ballot questions is a proposed state constitutional amendment, which sounds serious. It will ask voters to allow judges more leeway when setting bail. Assuming the public votes “yes,” judges will explicitly be able to consider the criminal histories and potential risk to public safety of defendants accused of violent crimes. ... Nonetheless, we recommend voting yes.' Support the merits of the words, even if they’re redundant."


Opposition

Ballotpedia did not locate media editorial boards in opposition to the ballot measure.

Background

Implementing legislation

Senate Bill 75 (2023)

The state Senate passed Senate Bill 75 by a vote of 21-10 on March 22, 2023. All Republicans and Democratic Sen. Brad Pfaff voted in favor of the bill. The remaining Democrats voted against SB 75. It was passed in the state House by a vote 67-30 with two not voting on March 23, 2023. Five Democrats joined all of the House Republicans in voting in favor of the bill. Gov. Evers (D) signed the bill on April 5, 2023. The bill would specify which offenses would be classified as violent crimes if the amendment is approved authorizing judges to consider previous violent crimes when setting bail. SB 75 classifies over 100 offenses, including arson, homicide, sexual assault, stalking, and human trafficking, as violent crimes.[8]

Wisconsin Question 3 (April 1981)

See also: Wisconsin Question 3, Conditions for Cash Bail Amendment (April 1981)

Wisconsin voters last amended section 8 of Article I of the state constitution in April 1981 with the passage of Question 3. It was approved by a vote of 73.15% to 26.85%. The amendment permitted the legislature to allow courts to deny, revoke, or set terms of cash bail.

Bail-related ballot measures (2010-2023)

Wisconsin Question 1 (2023)

Wisconsin voters decided on a second bail-related ballot measure on April 4, 2023. Question 1 amended the Wisconsin Constitution to authorize the state legislature to define serious harm in relation to the conditions, designed to protect the community from serious harm, a judge imposes on an accused person released before conviction.[1]

Ohio Question 1 (2022)

In 2022, Ohio voters approved a similar ballot measure that amended the Ohio Constitution to require courts to consider factors such as public safety, the seriousness of the offense, a person's criminal record, and a person's likelihood of returning to court when setting the amount of bail. The vote margin was 77.5% to 22.5%.[9]

California Proposition 25 (2020)

In 2020, California voters defeated a veto referendum, thus repealing Senate Bill 10 (SB 10), which would have replaced cash bail with risk assessments for detained suspects awaiting trials. The vote margin was 43.6% voting to uphold the law to 56.4% voting to repeal it.[10]

New Mexico Constitutional Amendment 1 (2016)

In 2016, New Mexico voters approved Constitutional Amendment 1, which allowed courts to deny bail to a defendant charged with a felony if a prosecutor shows evidence that the defendant poses a threat to the public, while also providing that a defendant cannot be denied bail because of a financial inability to post a bond. The vote margin was 87.2% to 12.8%.[11]

Washington HJR 4220 (2010)

In 2010, Washington voters approved a constitutional amendment to allow judges to deny bail to anyone charged with a crime carrying a maximum sentence of life in prison. The vote margin was 84.6% to 15.4%.[12]

History of bail in the United States

In 1789, the first United States Congress enacted the Judiciary Act of 1789, which established the federal court system. A section of the act said that “upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.”[13]

The Eighth Amendment of the United States Constitution reads “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment was adopted with the rest of the Bill of Rights in 1791. Before the adoption of the Bill of Rights in the Constitution, Virginia and Pennsylvania prohibited excessive bail in their state constitutions. Section 9 of Virginia’s 1776 Constitution said “excessive bail ought not to be required”, and Section 29 of the Pennsylvania Constitution of 1776 said “excessive bail shall not be exacted for bailable offenses. And all fines shall be moderate.”[14]

The Federal Bail Reform Act of 1966, which the United States Congress enacted in 1966, revised bail policy for federal criminal courts, saying that “all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges, to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest.” The act also establishes that a person can be detained if there is a risk of flight or danger.[15]

In 1984, Congress repealed the Bail Reform Act of 1966 by passing the Bail Reform Act of 1984. The Bail Reform Act of 1984 "authorizes a judicial officer to consider the safety of any person or the community when making a pretrial release determination."[16]

In the United States v. Salerno Supreme Court decision in 1987, the Bail Act Reform of 1984 was upheld as constitutional, permitting federal courts to arrest and detain an individual who the court deemed a danger to society. The Bail Reform Act of 1984 was not found to violate the Fifth Amendment’s due process clause, nor the Eighth Amendment, which prohibits excessive bail.[17]

Path to the ballot

See also: Amending the Wisconsin Constitution

In Wisconsin, the state legislature is required to approve an amendment by majority vote in two successive sessions for the amendment to appear on the ballot.

2021-2022 legislative session

The amendment was introduced as Assembly Joint Resolution 107 (AJR 107). The Wisconsin State Assembly approved AJR 107 by a vote of 70-21 with four not voting on February 15, 2022. The Wisconsin State Senate approved the amendment by a vote of 23-10 on February 22, 2022.[1]

Vote in the Wisconsin House of Representatives
February 15, 2022
Requirement: Simple majority vote of all members in each chamber in two sessions
Number of yes votes required: 48  Approveda
YesNoNot voting
Total70214
Total percent73.7%22.1%4.2%
Democrat13210
Republican5704
Vote in the Wisconsin State Senate
February 22, 2022
Requirement: Simple majority vote of all members in each chamber in two sessions
Number of yes votes required: 17  Approveda
YesNoNot voting
Total23100
Total percent69.7%30.3%0.0%
Democrat2100
Republican2100

2023-2024 legislative session

The amendment was proposed during the 2023-2024 legislative session as Senate Joint Resolution 2 (SJR 2). It was approved by the state Senate on January 17, 2023, by a vote of 23-9. It was approved by the state Assembly on January 19, 2023, by a vote 74-23.[18]

Vote in the Wisconsin State Senate
January 17, 2023
Requirement: Simple majority vote of all members in each chamber in two sessions
Number of yes votes required: 17  Approveda
YesNoNot voting
Total2390
Total percent71.9%28.1%0.0%
Democrat290
Republican2100
Vote in the Wisconsin House of Representatives
January 19, 2023
Requirement: Simple majority vote of all members in each chamber in two sessions
Number of yes votes required: 50  Approveda
YesNoNot voting
Total74232
Total percent74.7%23.2%2.0%
Democrat12230
Republican6202

Lawsuit

  
Lawsuit overview
Issue: Whether the state legislature filed the measures with the correct elections office before the referral deadline
Court: Dane County Circuit Court
Ruling: Ruled in favor of defendants; measures allowed to appear on April ballot
Plaintiff(s): EXPO Wisconsin and WISDOMDefendant(s): Wisconsin Elections Commission
Plaintiff argument:
The state legislature needed to file the referrals with county election officials by January 25 but missed the deadline by a day.		Defendant argument:
The state legislature needed to file the referrals with the state elections commission by January 25 and did so.

  Source: Kenosha News

On January 31, 2023, EXPO Wisconsin and WISDOM, two groups that oppose the bail amendments, filed a lawsuit challenging the certification of all three ballot measures sent to the April ballot by the state legislature. The lawsuit filed in Dane County Circuit Court argues that the state legislature needed to submit the referrals to county election officials by January 25 to abide by the state law that requires ballot measures to be "filed with the official or agency responsible for preparing the ballots" at least 70 days before the election. The state legislature filed the ballot measures with the state elections commission on January 19 and with county election officials on January 26.[19]

On February 20, Dane County Circuit Judge Rhonda Lanford ruled that the measures could appear on the April ballot. The judge found that the lawsuit lacked the legal requirements for the court to intervene.[20]

On October 16, 2023, Judge Lanford denied a motion from the state legislature and state elections commission seeking to dismiss the case. A hearing was scheduled for March 19, 2024.[21] 

On September 16, 2024, Judge Lanford ruled that the amendment would stand despite procedural flaws.[22]

How to cast a vote

See also: Voting in Wisconsin

See below to learn more about current voter registration rules, identification requirements, and poll times in Wisconsin.

How to vote in Wisconsin

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 Wisconsin State Legislature, "AJR 107," accessed January 5, 2023
  2. ↑ 2.0 2.1 2.2 2.3 2.4 Wisconsin State Legislature, "Text of SJR 2," accessed January 5, 2023
  3. ↑ Wausau Pilot and Review, "Assembly approves bail amendment welfare work requirement for April ballot," January 21, 2023
  4. ↑ Wisconsin Politics, "Rep. Conley Statement on Bail Constitutional Amendment," accessed March 7, 2023
  5. ↑ 5.0 5.1 Wisconsin State Legislature, "Hearing Materials," accessed February 9, 2023
  6. ↑ 6.0 6.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source. Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content
  7. ↑ Wisconsin Campaign Finance Information System, "Search," accessed January 30, 2023
  8. ↑ Wisconsin State Legislature, "Senate Bill 75," accessed March 22, 2023
  9. ↑ Ohio Secretary of State, "Issue 1," accessed Aug 30, 2022
  10. ↑ California Attorney General, "Referendum 18-0009," August 29, 2018
  11. ↑ New Mexico Legislature, "Senate Joint Resolution 1," accessed January 20, 2016
  12. ↑ The Seattle Times, "Amendment deal reached to allow judges to deny bail," March 4, 2010
  13. ↑ National Archives, "Federal Judiciary Act (1789)," accessed June 29, 2022
  14. ↑ Justia US Law, "Excessive Bail," accessed Sep 27, 2022
  15. ↑ U.S. Code, "Public Law 89-469," accessed June 29, 2022
  16. ↑ Congress.gov, "H.R.5865 - Bail Reform Act of 1984," accessed July 1, 2022
  17. ↑ Oyez, "United States v. Salerno," accessed June 29, 2022
  18. ↑ Wisconsin State Assembly, "SJR 2," accessed January 19, 2023
  19. ↑ Kenosha News, "Lawsuit seeks to block 2 measures from April ballot," January 31, 2023
  20. ↑ Channel 3000, "Wisconsin judge OKs ballot measures for April election," February 20, 2023
  21. ↑ Wisconsin State Journal, "Lawsuit challenging Republican workforce, cash bail measures can proceed, judge says," October 17, 2023
  22. ↑ AP News, "Wisconsin’s voter-approved cash bail measures will stand under judge’s ruling," September 16, 2024
  23. ↑ Wisconsin Election Commission, “Election Day Voting,” accessed May 4, 2023
  24. ↑ 24.0 24.1 24.2 Wisconsin Elections Commission, "Voter Registration and Proof of Residence," accessed May 4, 2023
  25. ↑ 25.0 25.1 25.2 NCSL, "State Profiles: Elections," accessed August 20, 2024
  26. ↑ Wisconsin Elections Commission, "Wisconsin Voter Registration Application," accessed November 2, 2024
  27. ↑ Under federal law, the national mail voter registration application (a version of which is in use in all states with voter registration systems) requires applicants to indicate that they are U.S. citizens in order to complete an application to vote in state or federal elections, but does not require voters to provide documentary proof of citizenship. According to the U.S. Department of Justice, the application "may require only the minimum amount of information necessary to prevent duplicate voter registrations and permit State officials both to determine the eligibility of the applicant to vote and to administer the voting process."
  28. ↑ 28.0 28.1 Wisconsin Elections Commission, "Photo ID," accessed May 4, 2023 Cite error: Invalid <ref> tag; name "wvid" defined multiple times with different content
  29. ↑ 29.0 29.1 Wisconsin Department of Transportation, "Wisconsin ID card for voting purposes - petition process," accessed May 4, 2023
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