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Wisconsin Republicans march ahead with proposed constitutional amendment on bail

The State Capitol building in Madison.
Chuck Quirmbach
The State Capitol building in Madison.

Republican state lawmakers are pushing ahead with a plan to put at least two constitutional amendments on the April ballot. One of them—if approved by voters—would allow judges to consider more factors when setting cash bail for criminal defendants. Critics fear bail amounts would go up, more often than go down.

The idea of a constitutional amendment on bail surfaced last year, after the Waukesha parade deaths incident when it came to light that then-defendant Darrell Brooks was out on $1,000 bail in a previous domestic violence case. The legislature passed the amendment last session, and conservative lawmakers are racing to pass it again so it can go before voters this spring.

Assembly Judiciary Committee Chairperson Ron Tusler is a UW-Milwaukee and Marquette Law School grad who now represents part of Northeast Wisconsin. The Republican Representative says allowing judges also to consider whether the community needs to be protected from serious harm when determining bail for the accused is a more accurate approach.

Assembly Judiciary Committee Chairperson Ron Tusler.
Assembly Judiciary Committee Chairperson Ron Tusler.

"It's a much better picture of who this person is, which is what a judge or court commissioner is trying to determine, than some of the other characteristics we're already using. For example, one of the considerations is your character in the community. What does that mean?" Tusler asked while laughing during a Wednesday hearing.

Critics of the proposed state constitution change say courts already have the ability to keep people accused of serious crimes in jail. However, prosecutors have to meet a higher standard with their legal arguments. Rep. Jimmy Anderson (D-Fitchburg) says if voters okay the measure, it will increase local court and jail costs. Plus, Anderson says it would worsen the current problem of poor defendants being unable to pay for their release.

Rep. Jimmy Anderson (D-Fitchburg).
Rep. Jimmy Anderson (D-Fitchburg).

"There are more people who are going to be facing being stuck in prison without being able to make bail. Also, if what we want to do is keep dangerous people in prison, there's going to be chances where, you have individuals who can afford to get themselves out of prison who could commit heinous acts that we're failing to take account of," Anderson warned.

Anderson cast the only "no" vote as the Judiciary Committee endorsed the bail amendment 6-1.

On Tuesday, during another legislative committee discussion, State Sen. Lena Taylor (D-Milwaukee) raised more concerns, including the possibility that Black and brown defendants may wind up with more time behind bars, than white defendants. Taylor questioned why Republicans are taking up the issue so early in the new legislative session.

"I'm just, very, always leery about changing the constitution. I just don't believe that should be what we're doing, especially rapidly, first committee, first bill, bam!," Taylor said.

Taylor also questions whether Republicans trust judges who have to go before voters.

Sen. Van Wanggaard, (R-Racine) a co-sponsor of the bail plan, responded that it's good that judges would have to spell out why they set a particular bail amount.

"We say that we have a way that we can go back and hold those judges accountable. Every four years they have to run for their position. What about the thousands of cases they deal with in between? This deals directly with that judge, with that case, with that individual victim and that offender and holds them accountable. And this will also hold the judge accountable to document why and articulate why they've come to the conclusion they've come to," Wanggaard said.

The State Senate Judiciary and Public Safety Commitee is scheduled to vote on the bail amendment Thursday.

Wanggaard chairs the committee.

Editor’s note: A portion of the audio is from WisconsinEye.

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