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Cash bail could play a big role in a crucial Wisconsin election

The proposed amendment would make it easier for judges to set higher bail amounts, and it could help drive turnout for conservatives in the Wisconsin state Supreme Court race.
A man pays cash bail in the bond office to secure his brother's release, on Dec. 21, 2022, at Division 5 of the Cook County Jail, Chicago.
A man pays cash bail in the bond office on Dec. 21 to secure his brother's release from the Cook County Jail in Chicago.Brian Cassella / Chicago Tribune via Getty Images file

Wisconsin has a crucial election on April 4, when voters will choose a new justice for the state Supreme Court. While such down-ballot races often don't get much attention, this one may be different. The election, which is on pace to set a spending record, will decide whether liberals are able to retake a majority from conservatives for the first time in 15 years — and thus control the outcomes in cases from abortion to elections.

But conservatives may benefit from an initiative that will be on the ballot at the same time: a proposed constitutional amendment that could make it more difficult for suspects in violent crimes to be released from jail on bail.

Both the liberal candidate, Janet Protasiewicz, and her conservative opponent, Daniel Kelly, say they support the amendment. But it is still expected to help Kelly by turning out Republicans and independent voters who prioritize concerns about crime.

“I think it’s probably helpful overall because of where our voters are going to be on those two issues,” Brian Schimming, the chairman of the Wisconsin Republican Party, said in an interview. 

The proposal, which passed the GOP-controlled Legislature with bipartisan support, will ask voters whether judges should be able to have more discretion when they set bail. For example, judges would be able to set the bail amount based on a suspect’s criminal history and the risk the person would cause “serious harm” to members of the community, as well as concerns over whether the suspect would flee before trial and other factors.

In contrast, now judges in Wisconsin can consider only whether "there is a reasonable basis to believe" the suspect could flee.

Cash bail has become a hot topic nationwide. Some Democratic-led states have moved forward with measures to eliminate or restrict the use of cash bail — only to face demands to reverse them amid rising crime rates.

In the 2022 Wisconsin Senate race, Republicans attacked Democratic candidate Mandela Barnes for his support of ending cash bail. Crime has already been a talking point in the 2024 presidential race, as well.

“It was so dominant in the last election cycle. Certainly it was a major factor in the Senate race here in Wisconsin,” said Brandon Scholz, a Wisconsin-based Republican strategist. “Crime is always an issue and almost always in real time, but this could help shape how the policy conversation unfolds.”

'If it drives conservative turnout, it drives conservative turnout'

Democrats have accused Republicans of timing the vote on the bail amendment to coincide with the Supreme Court election.

“Republicans are advancing a constitutional bail amendment as a political strategy to turn out Republicans and polarize the electorate,” Wisconsin Democratic Party Chair Ben Wikler said in an interview. “This is a political stunt where Republicans want voters to be thinking about crime on Election Day.”

Republicans maintain that they fast-tracked placement of the measure only so they could have the best and quickest shot at implementing new procedures to address crime.

Recent polling has consistently shown that a majority of Wisconsin voters are "very concerned" about crime, underscoring that the issue may stick around in the next election cycle.

“The sooner we got it on the ballot, the sooner we could make our communities safer,” said Republican Rep. Cindi Duchow, the measure’s lead sponsor in the state Assembly.

"If it drives conservative turnout, it drives conservative turnout. But I was really just thinking about Darrell Brooks," she said, referring to the man who was sentenced to life in prison for killing six people by driving his SUV through a Milwaukee-area parade in November 2021. Shortly before the attack, Brooks had been let out on $1,000 cash bail on a domestic violence charge.

Critics maintain the measure would worsen existing financial and racial inequities in the criminal justice system, making it easier for judges to keep people locked up while they await trial — which they say far more often happens to people of color.

In Wisconsin, for example, 1 of every 36 Black adults was imprisoned in 2021, according to research by the Sentencing Project, a nonprofit criminal justice reform group — the highest rate in the U.S. that year. Many remained incarcerated pending trial because they could not afford to post bail, the study found.

Cash bail critics say such a system widens economic and racial disparities because those people lose their jobs — and subsequently, often their housing and their ability to support their families.

And even without the amendment, judges in the state already have other options when they consider suspects' potential danger to the community, like ordering monitoring devices or barring them from contacting the victims.

The Darrell Brooks case

The Brooks case has been central to the debate, and it emerged as a flashpoint in debates about rising crime in Milwaukee during the midterm elections last year.

Advocates of the amendment argue that if officials had been able to consider Brooks' lengthy history of violent offenses, they most likely would have set a higher bail amount, which might have kept him in custody.

Opponents of the amendment say that Brooks’ flight risk alone — based on his failure to show up for several previous court appearances — should have sufficed for officials to set a higher bail amount and that their failure to do so was a tragic outlier. (Officials have characterized Brooks' low bail amount as "a mistake" based on "human error.")

“I think any conversation about the current debate around bail reform in Wisconsin and misguided efforts to change the law to allow judges even greater power than they already have to jail people while presumed innocent on unaffordable bail has to start at the original lie that started it all: That bail reform or the bail laws in Wisconsin allowed Darrell Brooks to drive his truck through a parade,” said civil rights attorney Scott Hechinger, the founder of the national criminal justice and advocacy organization Zealous. 

Hechinger said the amendment would do nothing to address a major underlying problem with cash bail: that suspects with financial means could still be released on bail while those without means, but accused of the same crimes, could not. 

While Duchow and other Republican supporters say they had been working on bail reform since 2017, they did not introduce their proposed amendment until the 2022 session, just weeks after Brooks’ rampage.

Legislators approved placing the amendment in 2022 with bipartisan support. They did so again last month after having fast-tracked the bill so the amendment could be placed on the April ballot. In Wisconsin, the Legislature must pass a proposed amendment in two consecutive sessions to place it on the ballot.

Gov. Tony Evers, a Democrat, who has declined to say whether he supports passage, has criticized Republicans for how they timed its placement.

“I think it will work against [Republicans]," he said last month. "When people see that the only thing they’re doing here is to try to influence the Supreme Court race, I think that’s going to irritate some folks.”

Cash bail reform nationwide

There has been significant movement on cash bail nationwide, much of it in blue states that have moved away from it.

In 2017, New Jersey effectively eliminated it, putting in its place a system that gives judges the discretion to hold or release people awaiting trial. But as crime rises in the state, legislators have reversed course, saying they want to undo parts of the reform.

In 2019, New York Democrats ended cash bail for most misdemeanors and nonviolent felonies. But Democratic Gov. Kathy Hochul supports efforts to roll back parts of the law.

And in Illinois in 2021, Democrats eliminated cash bail, putting in its place a system giving judges discretion to hold suspects based on their threat to public safety and flight risk; the state’s Supreme Court halted the law last month.

The reversals have given national Republicans ammunition.

Florida Gov. Ron DeSantis, a likely 2024 Republican presidential candidate, recently went after states that implemented no-cash-bail policies in speeches to law enforcement groups in New York and the Philadelphia and Chicago suburbs.

“Those policies we knew would fail, but now we’ve seen for sure that they have failed,” he told a group in Staten Island, New York, last week.

Several studies have shown there is no connection between bail reform and increased crime. One — a November 2020 analysis from the Prison Policy Initiative — studied research from 12 locations where pretrial amendments had taken effect and found no evidence that the changes resulted in increased crime.

Some red states have also been trying to do what Wisconsin is attempting. In Ohio, voters in November approved a constitutional amendment requiring judges to consider public safety, a suspect’s criminal record and other factors — in addition to the existing requirement that they consider a person’s flight risk — when they set bail. The amendment erased the ability of the Ohio Supreme Court — which ruled last year that setting excessive bail was unconstitutional — to establish bail rules.

“We’re not looking to put people in jail just to keep people in jail. It’s about keeping violent people off the street,” said Republican state Sen. Van Wanggaard, the Wisconsin measure’s lead sponsor in the Senate and a former police officer in Racine. “It’s not about having high bonds based on their race or gender. It’s about having high bonds based on what their crime was.

“Everyone has the right to have a reasonable bond set unless there are circumstances that the person should not be out in the community pending trial,” he added.

Schimming, the head of the Wisconsin GOP, said the party is not going to take a public position on the proposed amendment, but he also essentially dared opponents to go on the record supporting no-cash-bail policies.

“We’ve had a pretty good uptick in violent crime in Milwaukee, which is always a concern. And we’ve had some high-profile cases here. This is a pretty current issue for voters,” he said. “If the other side would like to use cashless bail examples of Illinois and New York of how it ought to work, I would say go right ahead and do that. They can be my guest.”

CORRECTION (March 2, 2023, 4:30 ET): A previous version of this article misstated when Illinois eliminated cash bail. It was in 2021, not last year.