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2023 ASSEMBLY JOINT RESOLUTION 1
January 6, 2023 - Introduced by Representatives DUCHOW, NEYLON, ALLEN,
BRANDTJEN, DITTRICH, EDMING, GUNDRUM, KITCHENS, KNODL, KRUG, KURTZ,
MACCO, MAGNAFICI, MICHALSKI, MOSES, MURPHY, MURSAU, NOVAK, ORTIZ-VELEZ,
RETTINGER, ROZAR, SNYDER, SORTWELL, STEFFEN, TITTL, WICHGERS and WITTKE,
cosponsored by Senators WANGGAARD, BRADLEY, TESTIN, FELZKOWSKI, FEYEN,
JAMES, QUINN and STROEBEL. Referred to Committee on Judiciary.
1 To amend section 8 (2) of article I of the constitution; relating to: conditions for
2 release prior to conviction, including the imposition of bail (second
3 consideration).
Analysis by the Legislative Reference Bureau
EXPLANATION OF PROPOSAL
This proposed constitutional amendment, to be given second consideration by
the 2023 legislature for submittal to the voters in April 2023, was first considered by
the 2021 legislature in 2021 Assembly Joint Resolution 107, which became 2021
Enrolled Joint Resolution 6.
Under the Wisconsin Constitution, a person accused of a crime is eligible for
release before conviction under reasonable conditions designed to assure the
appearance of the accused in court, protect members of the community from serious
bodily harm, or prevent the intimidation of witnesses. Such conditions of release
may include monetary bail only upon a finding that there is a reasonable basis to
believe that bail is necessary to assure the appearance of the accused in court.
This constitutional amendment provides that the accused 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, in addition to the other conditions specified above.
The constitutional amendment also eliminates, only with respect to violent
crimes as defined by the legislature by law, the requirement that monetary bail may
be imposed as a condition of release before conviction only upon a finding that there
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is a reasonable basis to believe that it is necessary to assure the appearance of the
accused in court. Instead, the constitutional amendment authorizes the imposition
of bail as a condition of release for persons accused of violent crimes only upon a
finding that there is a reasonable basis to believe that it is necessary based on the
totality of the circumstances, taking into account whether the accused has a previous
conviction for a violent crime as defined by the legislature by law; the probability that
the accused will fail to appear in court; 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 accused.
PROCEDURE FOR SECOND CONSIDERATION
When a proposed constitutional amendment is before the legislature on second
consideration, any change in the text approved by the preceding legislature causes
the proposed constitutional amendment to revert to first consideration status so that
second consideration approval would have to be given by the next legislature before
the proposal may be submitted to the people for ratification [see joint rule 57 (2)].
If the legislature approves a proposed constitutional amendment on second
consideration, it must also set the date for submitting the proposed constitutional
amendment to the people for ratification and must determine the question or
questions to appear on the ballot.
1 Whereas, the 2021 legislature in regular session considered a proposed
2 amendment to the constitution in 2021 Assembly Joint Resolution 107, which
3 became 2021 Enrolled Joint Resolution 6, and agreed to it by a majority of the
4 members elected to each of the two houses, which proposed amendment reads as
5 follows:
SECTION 1. Section 8 (2) of article I of the constitution is amended
to read:
[Article I] Section 8 (2) All persons, before conviction, shall be
eligible for release under reasonable conditions designed to assure their
appearance in court, protect members of the community from serious
bodily harm as defined by the legislature by law, or prevent the
intimidation of witnesses. Monetary conditions of release may be imposed
at or after the initial appearance only upon a finding that there is a
reasonable basis to believe that the conditions are necessary to assure
appearance in court, or if the person is accused of a violent crime as
defined by the legislature by law, only upon a finding that there is a
reasonable basis to believe that the conditions are necessary based on the
totality of the circumstances, taking into account whether the accused has
a previous conviction for a violent crime as defined by the legislature by
law, the probability that the accused will fail to appear in court, the need
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SECTION 1
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 accused. The legislature may
authorize, by law, courts to revoke a person's release for a violation of a
condition of release.
1 Now, therefore, be it resolved by the assembly, the senate concurring,
2 That the foregoing proposed amendment to the constitution is agreed to by the 2023
3 legislature; and, be it further
4 Resolved, That the foregoing proposed amendment to the constitution be
5 submitted to a vote of the people at the election to be held on the first Tuesday of April,
6 2023; and, be it further
7 Resolved, That the question concerning ratification of the foregoing proposed
8 amendment to the constitution be stated on the ballot as follows:
9 QUESTION 1: “Conditions of release before conviction. Shall section 8 (2)
10 of article I of the constitution be amended to allow a court to impose on an accused
11 person being released before conviction conditions that are designed to protect the
12 community from serious harm?”
13 QUESTION 2: “Cash bail before conviction. Shall section 8 (2) of article I of
14 the constitution be amended to allow a court to impose cash bail on a person accused
15 of a violent crime based on the totality of the circumstances, including the accused's
16 previous convictions for a violent crime, the probability that the accused will fail to
17 appear, the need to protect the community from serious harm and prevent witness
18 intimidation, and potential affirmative defenses?"
19 (END)