Three referendum questions will be on the April 4 ballot in Wisconsin, and many people are complaining that the wording is so confusing that they’re not sure what they are voting for or against.

The first two questions are binding and concern conditions of release before conviction and cash bail conditions.

Question 1: “Shall section 8 (2) of article I of 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?”

The state of Wisconsin is considering amending its state constitution that allows the state legislature to impose bail conditions on someone awaiting a criminal trial to protect the community from serious bodily harm. “Serious bodily harm” is defined in the constitution as bodily injury that contributes to death or a substantial risk of death, causes serious permanent disfigurement or causes permanent or semi-permanent impairment. 

This amendment would expand the term “serious bodily harm” to “serious harm” and allow the state legislature to define the new term in state law. This expanded definition could include causing mental or emotional harm, physical pain or illness, or serious property damage or economic loss. 

Question 2: “Shall section 8 (2) of article I of 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?” 

The second proposed amendment of the state constitution has to do with how cash bail can be set. It proposes that “the totality of the circumstances” be included in consideration. 

This includes factors such as “the accused’s past convictions for 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,” according to the proposal. 

Though there is already a state statute encouraging these considerations, Wisconsin Statute 969, it is not well-known. UWO criminal justice professor David Jones said the difference is in the goal. 

“The gist [of statute 969] is to discourage use of bail and and encourage pre-trial release except under exceptional circumstances,” he said. “I think the proposed amendment would tip the balance more in favor of making it easier to keep the accused in custody.”

Wisconsin judges have previously focused more on the factors outlined in the state constitution, especially flight risk, or the likelihood the accused will not return for their court date. 

Currently, the constitution says release conditions should be designed “to assure appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses” and that cash bail “may be imposed … only upon finding there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.” 

The proposed amendment would add “previous convictions for a violent crime” and “potential affirmative defenses” (such as duress, self-defense or entrapment) to the conditions the court should consider when imposing cash bail in a case of violent crime. It may also open up considerations for other factors at the discretion of the court. 

Those in support of these two amendments say these changes will empower judges to prevent criminals from reoffending pending their trial. 

Some opposing the amendments say people who are deemed a danger to their community should not be released at all, regardless of how much money they can pay. 

Other opponents say the wording of the amendments is ambiguous and misleading and will cause an increase in bail denial and pretrial detention, which would disproportionately affect low-income individuals, increase racial disparity in the justice system, increase costs for local jails and violate the rights of people to be presumed innocent until proven guilty. 

Further, they argue that more bipartisan discussion must be had on these issues before any constitutional amendments are made. 

The third referendum is advisory only, meaning the outcome of this vote will not change any state policies.

Question 3: “Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?”

Many Wisconsinites are already subject to work requirements for certain taxpayer-funded benefits such as unemployment insurance and FoodShare benefits, though the latter currently has those requirements on hold due to the pandemic.

The Wisconsin State Journal criticizes the existence of these referendums, especially the third one, saying that “Republicans who run the state Legislature hope to lure more conservatives to the polls by highlighting controversial-sounding issues” and that the wording of the third referendum seeks to “manufacture outrage.”

On a more optimistic note, Jones said the cash bail referendum was intended to make people feel more empowered. 

“Sometimes these votes are called  for ‘symbolic’ reasons,” he said. “It really doesn’t really affect anything, but gives the appearance of doing so. It makes supporters look/feel they’re being ‘tough on crime.’”