Tuesday, November 28, 2023



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The April 4 election includes two binding constitutional amendment questions concerning bail that would amend section 8 (2) of article I of the Wisconsin Constitution. The first ballot question seeks to amend the type of harm a judge may consider when ordering non-monetary bail conditions to protect the community. The second ballot question seeks to expand criteria judges may consider when ordering cash bail.

A “Yes” vote to the first ballot amendment modifies the harm judges may consider to protect the community from a defendant when imposing non-monetary bail conditions from “serious bodily harm” to “serious harm.” Deleting the word “bodily” expands community protection beyond physical harm to also include emotional harm, property damage, and other harm.

A “Yes” vote to the second ballot amendment broadens what judges may consider when ordering cash bail, which is currently limited only to assuring a defendant’s appearance in court. The amendment’s expanded cash bail criteria are: 1) the seriousness of the offense charged, 2) the previous criminal record of the accused, 3) the probability the accused will appear in court, 4) the need to protect the public from serious harm, or 5) prevent intimidation of witnesses.

Many prosecutors and judges already consider the five criteria in ballot question two regarding cash bail, believing they influence a defendant’s likelihood of appearing for court. However, some judges will not consider those factors because they don’t believe the Constitution allows it. This causes cash bond to be applied differently among judges with some criminals committing new crimes while on bond and a judge, that fails to consider the additional criteria, ordering low cash bond or a signature bond in the new criminal case.

Supporting both ballot amendment questions will improve our bail system and ensure judges uniformly apply cash bail standards to protect us from dangerous criminals, thus making Wisconsin safer. There are also statutory protections for defendants which include allowing bond modification motions and a speedy trial. If a speedy trial demand is not met the general remedy is to release the defendant from cash bail.

I ask that you join me in voting “Yes” to both constitutional amendment questions. By doing so you’ll join the bi-partisan Wisconsin District Attorneys’ Association and both candidates for the Wisconsin Supreme Court in supporting these amendments.

Eric Toney is President of the Wisconsin District Attorneys’ Association and Fond du Lac County District Attorney.



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