Voting is already underway for the spring election here in Wisconsin and I’m behind schedule on this so I’m going to cut to the chase in presenting the key info I think you should know about state referendum questions 1 and 2. If you haven’t already, I hope you’ll go back and read my last 4 posts (starting here) which provide some context for how I came to my opinions on the referendum.

First, Jack Kelly and Allison Garfield’s overview (excerpted below) of the ballot questions from their Cap Times voting guide is excellent:

Question 1: “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?”

A “yes” vote would approve an effort from lawmakers to broaden a judge’s authority to detain people before trial. Under current law, defendants are eligible for pretrial release under conditions the judge determines will assure they appear in court, prevent the intimidation of witnesses and protect members of the community from “serious bodily harm.” The amendment would change “serious bodily harm” to just “serious harm.”

“Serious harm” is not defined in the amendment. Instead, lawmakers are working to approve a standalone bill – that must be approved by Democratic Gov. Tony Evers – that would define serious harm as “personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm attendant to the personal physical pain or injury, illness or death; damage to property over $2,500 in value; or economic loss over $2,500 in value.”

The second question would broaden the factors a judge could take into consideration when imposing cash bail on someone accused of a violent crime. “Violent crime” is not defined in the amendment. The same standalone bill would define “violent crime” as a violation of more than a dozen state statutes, including several variations of homicides, sexual assault and physical abuse of a child, as well as other crimes like watching a cockfight, dog fight or bullfight.

Question 2: “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?”

Under current law, a judge can impose cash bail only if they believe the defendant might not appear at their next court date. A “yes” vote would allow a judge to consider previous convictions for a violent crime and the need to protect the community from “serious harm,” among other things, in addition to whether the defendant will appear at their next court date.

Critics of the cash bail amendment argue it won’t make communities safer, and will result in more low-income people incarcerated in county jails while awaiting trial dates. Wealthier people accused of violent crimes, critics say, will still be able to post bail, regardless of the change.

Consider me a critic as they describe it in that last paragraph. That is the most straightforward reason to oppose these amendments.

It is hard for me not to be cynical about the goals of these amendments. The lead sponsor of these bills, state Rep. Cindi Duchow tells how she was motivated to change the Constitution because a man in her neighborhood she describes as “a grandfather accused of molesting his grandchildren” was released on $75,000 bail and she didn’t want him in her neighborhood where other kids lived. She repeatedly says “It’s just common sense!”

Except it’s not. For a whole bunch of reasons.

I’ll spare you the part where I get on a soapbox about the fact that risk to kids in the neighborhood in that situation is actually probably next to none, but I will note that she is savvy in picking a story that will pull everyone’s fear strings.

Beyond that, it’s a dumb example. That person had $75,000 available to post bail. The amendments would allow judges to set the bail higher – so that maybe he couldn’t afford it? If the idea is simply to allow judges to impose whatever amount necessary to hold people in jail prior to their trials, then the whole purpose of bail changes from incentivizing someone to return to court for their hearings to incarcerating people who have not yet been proven guilty. Essentially, legislative sponsors of this bill are eroding a very fundamental part of our democracy that is innocent until proven guilty. They are saying “if someone is accused of a crime, we should lock them up right away.” The unsaid continuation of that sentence can be “because I want to feel safer…not because there’s evidence I will be safer.”

Holding people in local jails because they can’t afford bail will cost taxpayers money and stretch the already thin resources in our jails and sheriffs’ departments. For those being held, pretrial detention has been shown to lead to job loss, childcare disruption, housing loss, an increased likelihood of a conviction, and longer sentences than those who are released. Research also suggests that it has a limited effect on ensuring that people return to court – that is, the vast majority of people return to court already.

All of those are good reasons to reject these amendments. But here is one that may feel less direct: laws like these are the building blocks of systemic racism.

Wisconsin has the worst record in the country for racial disparity in incarceration. Black people make up about 6% of our total population and in 2019 made up 42% of the prison population. People often hear that and respond “Well, Black people must commit more crime.” There has been a lot of research to indicate that isn’t true, but here are some other informative stats:

Nationally, the average ratio of Black to White incarcerated individuals per 100K residents is 4.8:1. In Texas, it’s 3.5:1. In Wisconsin, it is 11.9:1. We incarcerate Black individuals at almost 3 times the national average and 4 times the rate of Texas. I find it highly unlikely that Black people in Wisconsin commit 4 times the crimes as Black people in Texas.

The reasons for the disparity are many factored and they compound at each step in the process. One of those reasons is the ability to post bail, which as stated above leads to a whole host of other issues.

I try not to let myself get too cynical, to think that the goal of this legislation is intentionally to shove poor and Black people into jails before being proven guilty. I hope that the reasons people support this have to do with the things I wrote about in my other posts: that they are grasping for a sense of safety and that – consciously or not – they see people who get arrested as the “bad guys”. I don’t know for sure.

But I do know that racism isn’t addressed through big sweeping changes. It requires seeing and addressing the thousands of tiny things that disproportionately impact people of color, things that fly under the radar and look good on paper. This referendum is one of those things.

Please vote no on both questions.