Here & Now

Cecelia Klingele on Wisconsin's Cash Bail Amendment Proposal

Frederica Freyberg:

In addition to the names of the candidates for state Supreme Court, Wisconsin voters will see something else on their ballot Tuesday. Two questions asking voters to amend the state’s constitution. Both of these questions have to do with the state’s cash bail system. Question one reads, “Conditions of release before conviction. Shall 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?” And question two reads, “Cash bail before conviction. Shall 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?” That’s a lot of words and proving confusing to even the highest information voters. Here for help, UW Law School Professor Cecelia Klingele. Thank you for being here.

Cecelia Klingele:

My pleasure.

Frederica Freyberg:

Let’s break this down. That first question first. It would allow judges to impose conditions of release. What are some examples of that?

Cecelia Klingele:

Judges already can impose conditions of release in most cases and those conditions can be things like curfews. They can be requirements even in some cases that people subject themselves to electronic monitoring. It can be restrictions on the consumption of alcohol. A broad array of conditions really limited to the judge’s discretion, but currently they have to be conditions that are tied closely to the risk that someone will cause serious bodily harm to someone, will intimidate witnesses or will not show up in court.

Frederica Freyberg:

And so, again, this is different how?

Cecelia Klingele:

From what’s being proposed? So the proposal would broaden the circumstances in which judges were able to impose conditions of people. During that time between when they are charged with a crime and when they’re convicted of a crime. This is really important that we keep remembering that during that time, under our law, people are presumed innocent. And so the law is really nervous, appropriately, about imposing restrictions that could feel punitive on people who haven’t yet been convicted of doing anything wrong. And so what the law change would do is enable judges to impose conditions in a broader array of circumstances, including not just when someone poses a risk of serious bodily harm, but of serious harm which the Legislature has separately defined in statutes that recently passed and would take effect were this amendment to be approved. That would effectively cover any situation where anyone caused any kind of harm to property, to a person, or even to the emotional well-being of another.

Frederica Freyberg:

And that is broad. Let’s look at the second question. It’s about setting cash bail based on things like past criminal history, protecting the community from serious harm and affirmative defenses. Now, affirmative defenses, what is that?

Cecelia Klingele:

So an affirmative defense is a legal term that we use to describe when someone engages in conduct that, under the law, would ordinarily be illegal, but the person is able to claim and prove that the circumstances were such that it wasn’t illegal in that particular instance. The best example of this is self-defense. So ordinarily you don’t get to hit someone or hurt someone, but if you’re acting in self-defense, then it’s not illegal.

Frederica Freyberg:

Does this seem reasonable or unreasonable to consider things like past convictions?

Cecelia Klingele:

Well, I think we have to sort of stop and ask what it is that we’re doing. So, again, under existing law, judges already can impose conditions on people that are designed to advance legitimate considerations. The question now in question two is when we get to ask people to pay money to post cash bond in order to be able to secure release.

Frederica Freyberg:

What are the consequences of these, if they pass, for courts?

Cecelia Klingele:

So the biggest change has to do with cash bond. Under our current law, you are only allowed as a court to ask someone to post money to be released during that period before conviction. If you have concerns if the person isn’t going to show up to court, the idea is we’re asking you to pay money as an incentive because you forfeit it if you don’t show up. Now, under the change, we would be able to ask you to give money in a much broader array of situations where we actually don’t have necessarily a concern that you’re not going to show up in court but we’re just — we don’t like the kind of crime that you are alleged to have committed. That’s a very different way to use cash than we have been using it in the past.

Frederica Freyberg:

Does it seem as though cash bails will go higher and people will sit in jail longer?

Cecelia Klingele:

That is certainly a possibility. Even more importantly, it’s likely to be imposed more frequently. And the reason why that might be a problem for us is that under the law, you’re not supposed to use cash to keep people detained. Cash bond is always supposed to be just a way of making sure people are complying with the rules to decide if they actually are guilty or not. The idea isn’t if you have money, you get to be out pending release and if you don’t have money, you’re stuck, and so we should set high bonds that people can’t meet. In fact, under existing law, U.S. and state law, you have to set reasonable bonds in amounts that people are expected to be able to pay, people are supposed to be out pending release, and we use conditions to keep everyone safe, not money, which has disparate effects on different people.

Frederica Freyberg:

With less than half a minute left, what is your guidance to voters who take a look at these when they go to vote?

Cecelia Klingele:

I think you want to spend some time really thinking about what good is being done by imposing cash in more cases. It’s important to remember we already have a statute in the state that allows people convicted of certain crimes of violence to be able to be detained without release under any circumstances when we have serious enough safety considerations.

Frederica Freyberg:

All right. Professor, thank you very much. We appreciate it.

Cecelia Klingele:

My pleasure. Thank you.

Frederica Freyberg:

Wisconsin voters will see one more question on the ballot, but it will have no policy effect as it is a non-binding referendum. The question reads “shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?” Republicans say they added this question to the ballot as a way of gauging public opinion about the issue, while Democrats say because there are already work or training requirements for benefits, it is intended to boost turnout among conservative voters in the state Supreme Court race.

You can learn more about the candidates and issues as well as follow election night results by visiting WisconsinVote.org.