WISCONSIN QUESTIONS 1 & 2

The Question 1 proposed amended versions of Section 8(2) of Article I of the Wisconsin Constitution from Wisconsin AJR1 could be seen as perpetuating inequities in the state's cash bail system, particularly for marginalized communities such as people of color and low-income individuals. By allowing judges to impose monetary conditions of release on individuals accused of violent crimes, the amended versions may disproportionately affect these communities, who are already overrepresented in the criminal justice system.

Furthermore, the language in the Question 2 proposed amended version of Section 8(2) from Wisconsin SJR2 appears to broaden the circumstances in which monetary conditions of release may be imposed, potentially making it more difficult for people to secure release pretrial. This could lead to longer periods of detention, which can have negative consequences for individuals and their communities, including loss of employment, housing instability, and increased risk of family disruption.

From a due process perspective, the imposition of monetary conditions of release must be based on a finding of necessity to ensure the defendant's appearance in court, not punishment or to create an undue burden. Moreover, the excessive bail prohibition under the Eighth Amendment prohibits bail that is excessively high, and it is important to ensure that the bail set is not in excess of what is reasonably necessary to ensure the defendant's appearance in court.

Therefore, any changes to Section 8(2) of Article I of the Wisconsin Constitution must be carefully considered to ensure that they do not exacerbate existing inequities in the state's cash bail system or violate the due process and excessive bail protections of the U.S. Constitution.