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Bail reform constitutional amendment set to take center stage in Madison

"I think it is common sense that the judge should look back at your past criminal convictions," Rep. Duchow said. “Judges are not allowed to look at your past criminal convictions at all."
Posted at 4:42 PM, Jan 09, 2023
and last updated 2023-01-09 19:44:40-05

MILWAUKEE — Bail reform is set to take center stage over the next two weeks in Madison.

Republican lawmakers are pressing forward with a push to change the state’s constitution to require judges to consider more factors when setting cash bail.

Several Democrats tell TMJ4 News that doubling down on cash bail would only worsen disparities.

"I think everyone realizes we've got a problem and the only way to solve it is we've got to start putting bad guys in jail,” said Rep. Cindi Duchow.

Wisconsin’s cash bail system is designed to ensure a person accused of a crime returns to court. Rep. Duchow, a Delafield Republican, believes that criteria alone opens the door for people charged with violent crimes to commit more while awaiting trial.

"I think it is common sense that the judge should look back at your past criminal convictions, the severity of the crime, and the safety of the community, and everybody I talk to about this assumes that's what happens right now, but that's not what happens,” she said. “Judges are not allowed to look at your past criminal convictions at all."

Rep. Duchow authored an amendment to change the state’s constitution to require judges and court commissioners to consider each of those factors when setting cash bail.

The amendment already cleared the first hurdle by passing the Wisconsin Legislature last year with bipartisan support. But since it needs to pass two consecutive legislative sessions, Republicans plan to put it up for another vote next week. From there, it would go to Wisconsinites on a statewide ballot referendum.

“Ultimately, do you think if this amendment passes a referendum that it would mean higher cash bail amounts for the most violent offenders?” TMJ4’s Ben Jordan asked.

"I think it will in some cases because they're going to be able to look back and see that there's a pattern of bad behavior here and again, I'm talking about violent crimes, not shoplifting,” Rep. Duchow replied.

“Are there any cases over the past couple of years where this could have made a difference?” Jordan asked.

"I look at the Darrell Brooks case, he had been convicted,” Rep. Duchow replied. “He had a rap sheet a mile long."

"We charge cases, make recommendations, but there's no question that it has caused everybody in the state to look really closely at the issue of bail,” said Milwaukee County District Attorney (DA) John Chisholm.

D.A. Chisholm says he also believes bail reform is necessary to put risk front and center in the decision, but he doesn’t think the state should depend on whether someone can post bail to keep the community safe.

“There's lots of people that pose a significant risk to the community but they're able to post almost any amount of cash,” D.A. Chisholm said. "What you should really be able to say is because of the prior record, because of the facts of this particular case, this person poses a risk to the community and they shouldn't be back out in the community until after the case is adjudicated."

Democratic State Senator Chris Larson voted against the Republican-led amendment last year. He believes Wisconsin should move away from the cash bail system altogether and follow the federal model.

"Wisconsin is number one in the country in terms of Black incarceration so I don't think we need to be continuing to move in that direction,” he said.

Sponsors of the amendment are holding a senate committee meeting Tuesday before putting this up for a vote in the legislature. Rep. Duchy says they would need to pass it by Jan. 24 in order to get the referendum on the ballot during the April election which is Wisconsin’s only scheduled statewide election in 2023.

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