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April 4, 2023 - Wisconsin Bail Referendum Questions

Wisconsin voters will face several important decisions in the upcoming April 4th election, including two referendums about the cash bail system. Ultimately, the referendums seek to amend the Wisconsin Constitution. In Wisconsin, two successive legislatures must adopt an amendment, and then it must be ratified in a statewide election, before that amendment can take effect.

Question 1 on the ballot will read:

“Conditions of release before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?”

As it stands, the constitution states that an accused person can be released under conditions meant to “protect members of the community from serious bodily harm or prevent the intimidation of witnesses.” Question 1 would essentially amend the constitution by removing “bodily” from “serious bodily harm.”

Currently, “serious bodily harm” is interpreted as "bodily injury which causes or contributes to the death of a human being or which creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury."

Removing “bodily” from this part of the Wisconsin Constitution will allow the state legislature to define what “serious harm” means, as the only definition currently provided is for “serious bodily harm.” In practice, defining this term will give direction to judges when they determine what bail conditions to impose on a person accused of a crime.

Question 2 on the ballot will read:

“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?”

This question amends the same section of the state constitution as Question 1. It would allow judges and commissioners, when setting cash bail, to consider previous convictions of violent crimes, the probability the accused would not appear in court, the need to protect the community from serious harm, the need to prevent witness intimidation, and the potential affirmative defenses that the accused may have. Currently, cash bail is imposed as a means to ensure an individual appears back in court.


Things to consider:

  1. The terms “serious harm” and “violent crime” have not yet been defined by state legislature. Depending on how the legislature defines these terms, any charge could qualify and result in high cash bail.

  2. Currently, judges and commissioners can already consider prior missed court appearances when imposing cash bail and can consider a multitude of factors (including the seriousness of the offense and the need to protect the public) when setting conditions of release.

  3. Conditions of release are set for those who have been accused of crimes, meaning the individual has not yet been convicted of a crime.


Proponents of the two amendments believe they are necessary to protect the public, ensure accountability, and give judges more discretion to hold accused persons in custody. For example, by removing “bodily” from “serious bodily harm”, the legislature might draft a definition of “serious harm” that is well below the earlier standard.

Opponents of the two amendments worry that they allow too much judicial discretion, and could result in the unfair treatment of those unable to post bail. Without providing a definition for “serious harm” to voters, opponents worry that the legislature will be given a blank check to draft a very low standard for imposing cash bail and associated bail conditions.


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