SB 75

Under the Wisconsin Constitution, a person accused of a crime is eligible for

release before conviction under reasonable conditions designed to do any of the

following: 1) assure that he or she will appear in court; 2) protect members of the

community from serious bodily harm; or 3) prevent the intimidation of witnesses.

The conditions of release may include monetary bail only if the court finds that there

is a reasonable basis to believe that bail is necessary to assure that the defendant will

appear in court. The Wisconsin Statutes relating to preconviction release contain the

same language as the constitution.

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