Constitutional amendment to tighten money bail system passes Assembly

A proposed amendment to the Wisconsin Constitution passed in the Assembly Tuesday, by a vote of 70-21 with 13 Democratic representatives joining with the Republicans who crafted the amendment.

Hammering through the amendment (AJR-107) was hardly troublesome for its GOP authors. “We don’t need cooperation across the aisle,” said Rep. Cindi Duchow (R-Town of Delafield) during a press conference at the Waukesha County Sheriff’s Department the morning of  the vote. “This has to pass two consecutive sessions of the Legislature,” Duchow noted, “so now and then hopefully next January.” After that, Wisconsinites will vote on the amendment in a referendum.

The location of Duchow’s press conference was no coincidence. In November, the state reeled from what became known as the Waukesha Christmas Parade tragedy, when a car plowed into the annual parade, killing six people and injuring more than 60.  Police arrested 39-year-old Darrell Brooks Jr., who is believed to have acted alone. A couple of weeks earlier, Brooks was released on $1,000 bail after being arrested on domestic violence charges and police have alleged that he plowed into the parade just after another domestic violence incident.

Republican legislators quickly began calling for harsher bail standards. And while bills are circulating that would set higher minimum monetary costs for bail in certain situations, Duchow took a different approach. Going the constitutional route dodges the veto power Gov. Tony Evers has over most legislation. The amendment raised immediate concerns from criminal justice advocates and lawyers for eliminating the long-held requirement that bail only be set to assure a person’s appearance in court. Instead, the amendment allows a court to also consider a person’s past criminal record when setting monetary bail. The court would also be able to consider “the need to protect members of the community from serious harm or prevent the intimidation of witnesses,” the amendment reads.

Additionally, the amendment would authorize the Legislature to “provide by law a court may deny release to a person accused of certain serious felonies if the court finds that available conditions of release will not adequately protect members of the community from serious harm, not just serious bodily harm, in addition to the other findings specified above.” Under current language, the Legislature may deny the release of a person only “for specified periods of time.”

One of the main concerns about the amendment is that it removes the  presumption of innocence. Lawyers, criminal justice advocates, and Democratic legislators also fear that it could inflate the rates of pretrial detention and mass incarceration. Since Brooks’ actions captured the state’s attention, the city where he resided and its district attorney have become targets of frustration and anger.

Milwaukee County District Attorney John Chisholm has stated  that Brooks’ bail was “inappropriately low.” However, Chisholm pointed to many factors that ultimately led to his release. One factor was  the freeze that the pandemic put on the court system, which denied Brooks his right to a speedy trial for a prior offense for which he was in custody. What had initially been a much higher $10,000 bail was reset to $500, and deputy prosecutors, who didn’t have access to a risk assessment done on Brooks because it hadn’t been yet uploaded to their internal system, doubled it to $1000.

That  explanation has largely been rejected by proponents of tougher bail laws. Meanwhile, the city of Milwaukee continues to struggle with rising homicide rates, gun violence and the difficulty of moving all those criminal cases through the system. When asked about the possibility of further overcrowding the jails, Duchow appeared unsympathetic.

“I’d tell Milwaukee County to get back to work,” said Duchow during the Tuesday morning press conference. “They have been closed down because of COVID. They finally went back to work full time.”

“This is a problem they created,” she added, “and they need to figure it out. So if that means that they have to go and rent other jail space somewhere else, that’s what we need to do. But we packed the Bucks Arena, we packed the Deer District, and they couldn’t pack the courtroom?” Duchow further stated, “I’m not in favor of helping them out right now because I think all the rest of us have been at work. So I don’t know why they aren’t.”

With one out of every 36 Black residents being incarcerated in a state prison, Wisconsin leads the nation in mass incarceration of African Americans. In 2019, 40% of Wisconsin’s state prison population was Black, despite only representing 6% of the state’s population. Latino residents, who comprise 7% of the state’s population, made up about 8% of the prison population, according to a report by the Sentencing Project. Duchow countered that a majority of the “crime victims” in Milwaukee are also Black. “I think they deserve to have us put the people who committed those crimes in jail,” she told Wisconsin Examiner, going onto reference the recent death of a 15-year-old girl in Milwaukee due to gun violence. “Those people in Milwaukee, they deserve a safe community. And we’re going to give it to them.”

When asked about her earlier statements against providing the city with support, Duchow regrouped saying that Milwaukee “needs to balance their own budget.” She told Wisconsin Examiner, “If they get their house in order and their budget’s all good, and they want to come to the state Legislature and say, ‘Hey we need some help,’ I’d be happy to talk to them then. But not until they get their house in order.” Later in the day, the amendment passed the Assembly with numerous GOP lawmakers making statements lasting over an hour.

Many pointed to crime rates in Milwaukee. Others cited a lack of support for law enforcement in Democratic cities as far away as Minneapolis. Others pointed to frustrations with what they called a “revolving door” in the justice system in Sauk County and Green Bay. Rep. Shae Sortwell (R-Two Rivers) lambasted the Democratic Party in Wisconsin as a whole. “For over 100 years, Milwaukee has been run by the Democratic Party,” said Sortwell during the Assembly session. “Do we think that in 100 years, maybe, they’d figure out how to deal with the problems there? This is something that the rest of the state of Wisconsin is looking at and saying, ‘We need to step in and we need to do something to help the city of Milwaukee. We need to make sure that there are the tools in place to make sure that violent crime is not simply ignored. We don’t just let violent people out to commit crimes again and then bleed out into the suburbs and bleed out across the state. The Democratic Party of Wisconsin has failed for 100 years.”

Once the resolution passed the Assembly, Republicans took a victory lap. “We are removing excuses and empowering judges to use their discretion appropriately to keep our communities safe,” said Duchow. “With violent crime from repeat offenders on the rise, it’s time to make sure we’re striking the right balance between keeping our communities safe and presuming innocence.”

Speaker Robin Vos joined in, stating that in Milwaukee, “one in five individuals charged with killing or trying to kill someone is already out on bail for another crime. More than half of those crimes are also violent. The catch and release of violent offenders in our communities must end.”

Groups like EXPO (Ex-Incarcerated People Organizing) are already mobilizing their own responses. Not only to the constitutional amendment, but also to proposed bills that would set mandatory minimum bails of no less than $10,000 for people with prior felonies or “violent misdemeanors.” In a press release the group stressed that “a majority of people this will impact will not be able to afford the cash bail amount. This will exponentially increase the population incarcerated prior to a verdict, that otherwise would not have been there. Additionally, the courts are behind an estimated 3-4 years which would mean that people could be incarcerated longer than the sentence they would receive if found guilty and that many more innocent people will be incarcerated for not having funds due to a floor for an extensive amount of time.”