‘Common Sense’: Wisconsin House, Senate Could Pass An Amendment That Would Shake Up Bail Rules

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  • The Wisconsin State Legislature’s new session will vote on a state constitutional amendment that would allow judges to weigh alleged violent offenders’ past violent convictions in setting their cash bail amounts and change the standard for allowing alleged offenders to be released before trial.
  • Many Democrats have opposed the measure, with state Sen. Chris Larson arguing it doubles down “on a broken system of cash bail.”
  • “As I talk to voters right now, they assume judges are already doing this,” said Republican State Assembly Rep. Cindi Duchow, who introduced the legislation. “They should look at your past violent criminal convictions when they’re considering to let you out, how much bail they’re gonna set for you. People assume that that’s what they’re doing, because it’s very common sense.”

A proposed Wisconsin state constitutional amendment would permit courts to consider alleged violent offenders’ previous violent crime convictions and change the standard judges can use in determining whether to release offenders, with one of the plan’s Republican champions calling it “common sense” and Democratic opponents arguing it could disadvantage poorer defendants.

The measure that Republican state Rep. Cindi Duchow introduced again on Dec. 6 would let Wisconsin judges weigh alleged violent offenders’ past violent criminal convictions, potential dangerousness to the community and the offense’s seriousness in determining their bail cost and decide whether to release alleged offenders based on their risk of causing serious harm to the public. The state Constitution currently restricts courts to making releases based on assuring an alleged offender’s court appearance, protecting the public against serious bodily harm or preventing witness intimidation.

“Right now we have a statute that says you should look at ‘serious bodily harm,’ which means death,” Duchow told the Daily Caller News Foundation. “We are going to re-write that to say, ‘serious harm,’ which would include child molestation, human trafficking, rape, things that logically are violent and a reason you should reconsider how much to let this gentleman out on.”

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The Wisconsin State Senate is also considering the proposal, and both houses passed it last session, Duchow noted. The Republican-controlled Senate and Assembly will vote on the potential amendment on Tuesday and Thursday respectively, potentially fulfilling the requirement that two consecutive Wisconsin state Legislature sessions pass an amendment before sending it to voters’ April ballots.

“As I talk to voters right now, they assume judges are already doing this,” Duchow said. “They should look at your past violent criminal convictions when they’re considering to let you out, how much bail they’re gonna set for you. People assume that that’s what they’re doing, because it’s very common sense.”

Ten Democratic state senators including Sen. Chris Larson voted against the proposed amendment in February 2022. Democratic Gov. Tony Evers won his second term in the swing state that November.

“As 21 other states and the federal courts have moved away from cash bail in favor of a substantial risk model of pretrial detention, this resolution moves us in the opposite direction, doubling down on a broken system of cash bail,” Larson told the DCNF. “How much money someone has does not determine their guilt or innocence, and should not determine their freedom before trial. Wisconsin Republicans should follow the recommendations of the bipartisan study committee they created, which did not include the expansion of cash bail.”

Previously-convicted felon Darrell Brooks was released on $1,000 bail for charges including battery and second degree recklessly endangering safety days before he drove through a crowd at Waukesha, Wisconsin’s November 2021 Christmas parade, killing seven people and injuring dozens more. District Attorney John Chisholm blamed the low bail amount on “human error,” saying an assistant district attorney with a high caseload had agreed to it without yet having access to Brooks’ risk assessment system, according to NBC News.

“I think the Waukesha parade made us realize that Milwaukee has been a problem for a very long time, and this might be a way to hold those judges’ feet to the fire,” Duchow told the DCNF.

Rapes, robberies, aggravated assaults, burglaries and thefts in Milwaukee all fell in 2022 compared to 2021, but homicides went up roughly 11%, Milwaukee Police Department data shows. Milwaukee broke its homicide record last year, according to Spectrum News 1.

“They deserve to be fed up because right now we’re in a state of crisis in the city,” Milwaukee Mark Chambers Jr. said of city residents, the outlet reported. “We have broken the record for the most homicides for the third year in a row, and that’s unacceptable.”

The assistant district attorney in Brooks’ $1,000 bail release, who the Milwaukee Journal Sentinel identified as Michelle Grasso, had ten other people released for that amount or less who were charged with subsequent felonies, according to TMJ 4. Authorities released Isaiah Bernard on $500 bail in 2021 after he was charged with felony strangulation, but he received two felony child abuse charges a few months later.

Catina Pinkins was charged with battery, disorderly conduct, use of a dangerous weapon and felony bail jumping in 2021, receiving a $1,000 bail offer after being charged with two counts of felony recklessly endangering safety that August and gaining bail release for the same amount, TMJ4 reported. Cierra McCloud was released on $700 bond after a February 2021 substantial battery charge, only to be charged with felony bail jumping, criminal property damage and disorderly conduct in September and have her new bail set $200 lower.

Democratic state Rep. Jimmy Anderson, who voted against the proposal in the assembly last session along with many of his fellow party members, said his Republican colleagues “seem more interested in rushing out this amendment than ensuring the safety of our communities.”

“I believe that dangerous criminals should not be released out onto the streets just because they are wealthy,” he told the DCNF.

Duchow originally introduced a version of the amendment in 2017 after a neighbor who confessed to molesting his grandchildren remained out of jail for several months prior to a finalized plea deal, she claimed. She reported discovering Wisconsin authorities could not constitutionally consider the seriousness of an offense or the danger to the community in setting the man’s bail.

“How do you set bail and let somebody out when you don’t know what they’ve done in the past?” Duchow argued. “80% of domestic abusers reoffend. And those are the ones that after the fourth or fifth time they get let out on $1000, and we’ve had a case here in Milwaukee where right after it happened, two days later, the gentleman went and murdered his wife.”

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