Statutory changes to implement the constitutional amendment relating to conditions of release

A proposed amendment to the Wisconsin Constitution, to be given second consideration by the 2023 legislature for submittal to the voters in April 2023, changes these provisions. This bill changes the statutes relating to preconviction release to conform to the changes in the proposed constitutional amendment. The bill will take effect when the amendment is ratified by the voters and will be void if the amendment is not ratified by the voters.

Conditions of preconviction release The proposed constitutional amendment provides that a defendant is eligible for release before conviction under reasonable conditions designed to protect members of the community from “serious harm as defined by the legislature by law,” not just “serious bodily harm.” The bill defines “serious harm,” as required by the amendment, and harmonizes the statutes with the amended constitutional provision to allow the court to set reasonable conditions designed to protect members of the community from serious harm. Under the bill, “serious harm” is defined as any of the following: 1) 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; 2) damage to property over $2,500 in value; or 3) economic loss over $2,500 in value.

When bail may be imposed The proposed constitutional amendment also expands the reasons why a court may impose monetary bail on a defendant as a condition of release. Under current law, monetary bail may be imposed only if the court finds that there is a reasonable basis to believe bail is necessary to assure that the defendant will appear in court.

The proposed constitutional amendment adds that, if the defendant is accused of a violent crime as defined by the legislature by law, monetary bail may be imposed if the court finds that there is a reasonable basis to believe that bail is necessary based on the totality of the circumstances. The proposed amendment provides that, when considering the totality of the circumstances, the court may take into account whether the defendant has a previous conviction for a violent crime as defined by the legislature by law; the probability that the defendant will fail to appear; the need to protect members of the community from serious harm as defined by the legislature by law; the need to prevent the intimidation of witnesses; and the potential affirmative defenses of the defendant. The bill defines “violent crime” for this purpose, and it changes the statutes to incorporate the additional reasons that the court may impose monetary bail as a condition of release. The definition of “violent crime” includes crimes such as homicide, aggravated and special circumstances battery, mayhem, sexual assault, false imprisonment, human trafficking, taking of hostages, kidnapping, stalking, disarming a police officer, arson, felony burglary, and carjacking; crimes to which a domestic abuse or dangerous weapon penalty enhancer may be applied; the violation of a domestic abuse, child abuse, or harassment injunction; or the solicitation, conspiracy, or attempt to commit a Class A felony.