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2019 - 2020 LEGISLATURE
March 15, 2019 - Introduced by Joint Legislative Council. Referred to Committee
on Insurance, Financial Services, Government Oversight and Courts.
SJR13,1,4 1To renumber and amend section 8 (3) of article I; to amend section 8 (2) of article
2I; and to create section 8 (3) (a), (b) and (c) of article I of the constitution;
3relating to: release of a person accused of a crime prior to conviction (first
4consideration).
Analysis by the Legislative Reference Bureau
This constitutional amendment, proposed to the 2019 legislature on first
consideration, is explained in the prefatory note provided by the Joint Legislative
Council.
A proposed constitutional amendment requires adoption by two successive
legislatures, and ratification by the people, before it can become effective.
SJR13,1,5 5Resolved by the senate, the assembly concurring, That:
Joint Legislative Council prefatory note: This joint resolution was prepared for
the Joint Legislative Council's Study Committee on Bail and Conditions of Pretrial
Release. The Wisconsin Constitution provides that 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, or prevent the
intimidation of witnesses. Under the Wisconsin Constitution, monetary conditions of
release may be imposed only upon a finding that the conditions are necessary to assure
appearance in court. The Wisconsin Constitution provides that the legislature may
authorize, but may not require, circuit courts to deny release to a defendant prior to
conviction under either of the following circumstances:

1. The defendant is accused of committing a murder punishable by life
imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years.
2. The defendant is accused of committing or attempting to commit a felony
involving serious bodily harm to another or the threat of serious bodily harm to another
and has a previous conviction for committing or attempting to commit a felony involving
serious bodily harm to another.
Among other requirements, the constitution limits the period of time for which a
person may be detained under a pretrial detention statute to 10 days before a pretrial
detention hearing and 60 days following a pretrial detention hearing. The constitution
also specifies that any pretrial detention law enacted by the legislature must contain a
requirement that a court may only detain a defendant following a pretrial detention
hearing if: (1) the court finds, by clear and convincing evidence presented at the hearing,
that the accused committed the felony he or she is accused of committing; and (2) the court
finds that the available conditions of release will not adequately protect members of the
community from serious bodily harm or prevent intimidation of witnesses.
This joint resolution inserts the word “presumed” before “eligible” in the Wisconsin
Constitution to provide that all persons, before conviction, shall be presumed eligible for
release under reasonable conditions designed to assure their appearance in court, protect
members of the community from serious bodily harm, or prevent the intimidation of
witnesses. The joint resolution also allows the legislature to authorize circuit courts to
deny release prior to conviction. It replaces all of the requirements the Wisconsin
Constitution currently specifies the legislature must include in a pretrial detention law
with three requirements. The joint resolution specifies that any law authorizing circuit
courts to deny release prior to conviction must: (1) specify the circumstances under which
an accused may be denied release prior to conviction; (2) limit the period of time an
accused may be denied release prior to conviction; and (3) require that the court conduct
a pretrial detention hearing. The joint resolution also removes language from the
Wisconsin Constitution that prohibits the legislature from enacting a law requiring
courts to deny release to a defendant prior to conviction.
SJR13,1 1Section 1 . Section 8 (2) of article I of the constitution is amended to read:
SJR13,2,92 [Article I] Section 8 (2) All persons, before conviction, shall be presumed eligible
3for release under reasonable conditions designed to assure their appearance in court,
4protect members of the community from serious bodily harm or prevent the
5intimidation of witnesses. Monetary conditions of release may be imposed at or after
6the initial appearance only upon a finding that there is a reasonable basis to believe
7that the conditions are necessary to assure appearance in court. The legislature may
8authorize, by law, courts to revoke a person's release for a violation of a condition of
9release.
SJR13,2 10Section 2. Section 8 (3) of article I of the constitution is renumbered section
118 (3) (intro.) of article I and amended to read:
SJR13,3,20
1[Article I] Section 8 (3) (intro.) The legislature may by law authorize, but may
2not require,
circuit courts to deny release for a period not to exceed 10 days prior to
3the hearing required under this subsection to a person who is accused of committing
4a murder punishable by life imprisonment or a sexual assault punishable by a
5maximum imprisonment of 20 years, or who is accused of committing or attempting
6to commit a felony involving serious bodily harm to another or the threat of serious
7bodily harm to another and who has a previous
conviction for committing or
8attempting to commit a felony involving serious bodily harm to another or the threat
9of serious bodily harm to another. The legislature may authorize by law, but may not
10require, circuit courts to continue to deny release to those accused persons for an
11additional period not to exceed 60 days following the hearing required under this
12subsection, if there is a requirement that there be a finding by the court based on
13clear and convincing evidence presented at a hearing that the accused committed the
14felony and a requirement that there be a finding by the court that available
15conditions of release will not adequately protect members of the community from
16serious bodily harm or prevent intimidation of witnesses.
Any law enacted under
17this subsection shall be specific, limited and reasonable. In determining the 10-day
18and 60-day periods, the court shall omit any period of time found by the court to
19result from a delay caused by the defendant or a continuance granted which was
20initiated by the defendant.
do all of the following:
SJR13,3 21Section 3 . Section 8 (3) (a), (b) and (c) of article I of the constitution are created
22to read:
SJR13,3,2423 [Article I] Section 8 (3) (a) Specify the circumstances under which an accused
24may be denied release prior to conviction.
SJR13,4,2
1(b) Limit the period of time an accused may be denied release prior to
2conviction.
SJR13,4,33 (c) Require that the court conduct a pretrial detention hearing.
SJR13,4 4Section 4 . Numbering of new provisions. If another constitutional
5amendment ratified by the people creates the number of any provision created in this
6joint resolution, the chief of the legislative reference bureau shall determine the
7sequencing and the numbering of the provisions whose numbers conflict and shall
8adjust any cross-references to those provisions.
SJR13,4,11 9Be it further resolved, That this proposed amendment be referred to the
10legislature to be chosen at the next general election and that it be published for three
11months previous to the time of holding such election.
SJR13,4,1212 (End)
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