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How Would Bail Change in Wisconsin if the Bail Amendment Passes?


Wisconsin voters are set to consider an amendment to the state constitution that changes the criteria by which judges consider defendants’ eligibility for cash bail. The Wisconsin assembly endorsed the measure on January 19, 2023 with a 74-23 vote in favor of the amendment, which sends it to voters for ratification during the April 4 statewide election.

What Is Cash Bail?

Cash bail is a system that allows individuals accused of a crime to be released from jail while awaiting trial. In order to secure pretrial release, however, the accused must pay an amount of money as security. Conditions of bail and/or bond can include:

  • Appearing at all court dates.
  • Giving written notice to the Clerk of Court within 48 hours of any change of address or telephone number.
  • Not committing any crimes.
  • Refraining from threatening, harassing, intimidating or otherwise interfering with victims or witnesses in the case.
  • Complying with any other condition as ordered by the court.

If the defendant fails to attend their hearing, their money is automatically forfeited to the court. The defendant can also face additional legal penalties as a consequence. Theoretically, if the defendant does appear in court, the money can be returned to them. However, cash bail in Wisconsin can be confiscated to pay for court fees and victim restitution if the defendant is found guilty. Any remaining funds will then be returned.

How Does Bail Currently Work in Wisconsin?

Currently, Chapter 969 of Wisconsin Statutes governs bail. A judge may only impose bail if the court decides there is a reasonable concern that the defendant may not appear in court without that security. In order to determine the risk that the accused might flee, the judge can evaluate the following:

  • The defendant’s local ties
  • The defendant’s criminal history, especially any history of missed court appearances
  • The severity of the charges against the defendant

The rationale behind these three factors is that if a defendant, for instance, lives out of state, has a history of missed court appearances, and/or is facing serious criminal charges, they are more likely to flee. Imposing cash bail then provides an incentive to the defendant to return for their subsequent court appearances.

How Will the Amendment Change Bail in Wisconsin?

Rather than using the likelihood of the accused individual’s non-appearance in court as the only measure of determining whether an accused person can be permitted pretrial release via cash bail, the new amendment would require a judge to consider four factors. These would include:

  • 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
  • Potential affirmative defenses

Of these four factors, only the second – the probability that the accused will fail to appear – is currently on the books in Wisconsin.

Potential Issues with the New Amendment

Opponents of the new amendment contend that the law is unclear as to its definition of violent crime. According to PBS Wisconsin, state law “currently offers three definitions for what constitutes a violent crime. Judges would have to decide which definition applies.”

Others are concerned that the new law will only deepen existing inequity in the way cash bail is applied, and they argue that there are other ways of protecting public safety than the bail system.

If you have been accused of a crime, it is critical that you reach out to an experienced criminal defense attorney as soon as possible. At the Law Offices of Christopher J. Cherella, we understand how much depends on the outcome of your case. We are committed to mounting a robust defense for each of our clients.

Contact us online or call us at (414) 882-8382 to schedule a consultation.