Lawyers Caution Against Changing Bail System

In the aftermath of the tragedy at the Waukesha Christmas Parade on Nov. 21, there have been calls across the state for a review of the low bail set for Darrell Brooks, Jr., who was released after being charged with other violent crimes, as well as a push for broader changes to the criminal justice system. A joint resolution in the Legislature, proposed by Rep. Cindi Duchow (R-Town of Delafield) and Sen. Van Wanggaard (R- Racine) would create a new constitutional amendment to make judges consider the dangerousness of a defendant when setting bail.

More than 60 people were injured and six were killed after a vehicle plowed into the parade in Waukesha last month. Eight-year-old Jackson Sparks became the sixth person to die when he succumbed to wounds suffered in the incident two days later. Many of the wounded remain in the hospital. Brooks, the driver of the vehicle, faces six counts of homicide among other charges.

About two weeks before the Christmas parade tragedy, on Nov. 11, Brooks was released on $1,000 bail after being arrested on a domestic violence charge. Prosecutors say Brooks attempted to strike the mother of his child with a fist, and then tried to run her over with the same vehicle he was driving during the Waukesha parade. The Milwaukee County District Attorney’s Office is reviewing the decision to release Brooks, with District Attorney John Chisholm calling the $1,000 amount “inappropriately low,” given the charges.

Brooks is currently confined with a $5 million bail. When he appeared in court on Tuesday, prosecutors stated they’re interested in modifying Brooks’ bail in two other pending cases against him in Milwaukee County. Brooks’ public defender also withdrew in court on Tuesday, citing a conflict of interest due to a connection with one of the victims. On Dec. 1, U.S. Sen. Tammy Baldwin requested a moment of silence for the victims in Waukesha on the Senate floor. A bipartisan group of Wisconsin congressmen did the same in the House.

Scapegoating the bail system, and justice reform

As the Waukesha community and the state reel from the tragedy, some advocates are concerned about a brewing backlash against progressive criminal justice policies. Deja Vishny, a criminal defense attorney in Milwaukee and the retired head of the state public defender’s homicide practice group, says in Brooks’ case, parts of the system worked as intended. The current standards “recommended that he was a high risk and that a higher cash bail should have been set,” Vishny tells Wisconsin Examiner.

She and other defense attorneys worry that a push to set higher bail in reaction to this case will have unintended consequences, punishing low-income people who have not yet had their day in court.

“Most people who are out on bail never commit another crime when they’re out on bail,” she says. “And we are unnecessarily locking people up on bail when they haven’t been found guilty of any crime, when more well-to-do people can pay the bail and poor people can’t.”

The longer someone is incarcerated on bail, the more unstable their lives become. Ion Meyn, an assistant professor at the University of Wisconsin Law School, advises against a rush to make bail and pretrial detention more punitive. “I would caution care when we have an incident and try to then apply that incident to inform policy decisions,” says Meyn. “I think it’s a really treacherous path to take and I don’t suggest doing so.” He adds that, “I think we want to immediately punish someone, change some rule, make someone accountable for a decision. At the end of the day, if we could understand in this world that we live in that tragedy happens —  it’s going to happen whether you detain people or not.” Although Meyn says he is heartbroken for the Waukesha community, he warns that reacting to a tragedy doesn’t necessarily inform good policy.

Meyn highlights specific language in Wisconsin’s bail statute. At its core, the statute is designed to assure an appearance in court by the accused. “If bail is imposed,” the statute reads, “it shall be only in the amount found necessary to assure the appearance of the defendant. Conditions of release, other than monetary conditions, may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses.” Those other conditions of release could be GPS monitoring, increased supervision and other conditions that don’t involve paying money.

Former prosecutor and a clinical professor at UW-Madison Law School Lanny Glinberg says the fact that Brooks was not held on higher bail in Milwaukee doesn’t stem from a lack of authority to detain him. Rather, it was “a discretionary decision made by a judge and apparently at the recommendation of the prosecutor that his bail would be low.” Glinberg explains that, “with the system and statutory and constitutional structure that we have right now, there’s no lack of authority to impose higher bail in a case like that. The problem is that no release decision is without risk. But we can’t lock up pending trial every potentially risky individual. We wouldn’t let anybody out if we were looking for zero risk. And we need to keep that in mind.”

Amending the state Constitution

Rep. Duchow is seeking to amend the Wisconsin State Constitution to restructure how judges apply bail to individuals with criminal histories. During Brooks’ first appearance in court, prosecutors recounted his history with the criminal justice system dating back to 2000. Duchow’s proposed amendment would compel judges to consider the dangerousness or potential violence of an individual when determining cash bail.

“Wisconsin continues to see examples of people with extensive criminal histories committing crimes while out on bail,” Duchow said in a statement announcing her proposed joint resolution. “Most recently was the tragic and horrific attack on the Waukesha Christmas Parade by an individual with a long history of violent crimes. Allowing judges to consider the safety of the community, seriousness of offense, and previous record of the offender provides another tool to protect both victims and the community while the judicial process plays out.”

But Vishny stresses that increasing bail widens the distance between the haves and the have-nots in an already inequitable criminal justice system. “When people stay in jail for crimes they lose their jobs, they lose their housing, they may lose public assistance, they may lose contact with their children, there are all kinds of ill effects for people who are never going to be necessarily incarcerated on that crime,” argues Vishny. “Therefore, it is a mistake to change the bail system because of this. There’s no such thing as a perfect system. There will probably always be some individual, somewhere, at some point, who’s released on bail and commits a horrible crime like what occurred in this case. But there are thousands of people who should be released, and we could have a safer society because they are released. Because they do see their children, they do keep their housing, they do keep their jobs.”

Judges already have the power to assess a person’s risk to the community, and apply additional conditions for release based on that risk. “In Wisconsin we already have, under state law, the ability of the judge to detain, without bail, someone who, for example, allegedly committed murder or a serious sexual assault,” says Meyn. “It doesn’t have to be cash bail, it’s just pretrial detention. You ain’t getting out. It’s already there.”

Judges have discretion when it comes to bail, too. “Those levers are all there for judges and prosecutors,” Meyn says. “And the fact that legislators now are making a big deal about how we have to add in danger to society as a particular element of the bail consideration, that’s a really bad idea. If you think it’s hard for judges to make tough decisions right now, it’s going to be impossible if that’s in there. Because then we hold the judge completely responsible. The judges already take danger to society into account, but have to do it other ways through the bail statute.”

Criticism of Chisholm

Chisholm has become a target for criticism because of Brooks’ $1,000 bail.  The chain of decisions made prior to Brooks’ release was put under the microscope during a Milwaukee County Board of Supervisors committee meeting on Dec. 2. The Judiciary, Safety, and General Services Committee brought together county supervisors, the district attorney and other members of the criminal justice system. Committee members, including Supervisors. Ryan Clancy, Sylvia Ortiz-Velez, and Patti Logsdon, were personally affected by the Waukesha Christmas Parade tragedy.

“Anything I say right now has to be remembered in the context that Mr. Brooks is presumed innocent until the cases are adjudicated,” Chisholm said to the supervisors. “Prosecutors are obligated to say that in any case where a charge has been issued. And it speaks to the issue of bail as well and that is that the state ultimately bears the obligation to prove every case with evidence that supports a finding of proof beyond a reasonable doubt. The state’s main power, as it were, is to issue a charge. We do not ultimately decide the outcome of that charge.” In a prior weapons related charge, Brooks had been held on $10,000 bail, Chisholm notes.

The strain the pandemic put on the system also came into play. “What occurred is that this defendant was held on bail, and then trial dates were set,” Chisholm explained. “He had a trial date set that we could not provide a court trial for him, or a jury trial for him on that date.” Because Brooks couldn’t be provided a speedy trial, his custody status needed to be reviewed. “That’s what occurred, the bail was reduced in that case. Some time later, Mr. Brooks is arrested again for a very serious domestic violence offense.” At that point, the district attorney’s office needed to get involved again.

Chisholm said that the assistant district attorney in this case was one of the office’s two dedicated felony domestic violence prosecutors. With just two and a half years of experience, “she’s done over 20 jury trials,” says Chisholm. The day Brooks’ case went to her desk, she was in the middle of a multi-day jury trial. “In addition to having almost two dozen felony-level cases to review,” Chisholm explained, giving context for Brooks’ release. “This case was one of those cases she was reviewing in that context.” Additionally, a risk assessment done on Brooks wasn’t uploaded to the office’s system, so the assistant district attorney didn’t have access to it. “Given the volume of cases she was dealing with, given her jury trial that she was working on, she simply charged the case. She looked at the previous bail, saw that it was $500 and she doubled it. That’s it, that’s a mistake. It’s human error. And it just set in motion a chain of events that resulted in a tragedy.”

Since taking office in 2007, Chisholm has advocated for reforms to the criminal justice system, including the cash bail system, and support for community-based programs.

An online dashboard created by the Milwaukee County District Attorney to track key data indicators shows recent improvements in certain areas. In June 2020, it took victim advocates an average of two days to contact the victim following a case being referred, compared to an average of 54 days in 2017. The number of felony and misdemeanor cases charged have dropped. The DA’s office’s online dashboard states, “A decision to reject a case before filing means less people unnecessarily enter in the justice system only to have their case dismissed early.” Additionally, between 2015 and 2020, the number of cases with a jail sentence decreased from 2,661 to 596. That’s a 77.6% decline.

This is all occurring against the backdrop of an already heavily incarcerated city. The 53206 area code in Milwaukee is America’s most incarcerated zip code. One out of every 36 African American residents in Wisconsin are incarcerated and nearly 70% of the Black population in Wisconsin resides in Milwaukee County. Wisconsin’s rate of incarceration for African Americans, in fact, is the highest in the nation. Many facilities, whether county jails, the state-controlled Milwaukee Secure Detention Facility or numerous prisons peppered across the state are overcrowded and deteriorating.

Many of the supervisors appeared to be aware of the logistical issues stemming from mass incarceration. Ortiz-Velez questioned Chisholm on the district attorney’s office’s chronic staffing needs and inability to pay prosecutors competitive wages. Clancy wondered what community-based alternatives to incarceration could be supported.

Tougher-on-crime proposals also came up in the Milwaukee County committee meeting. Logsdon pleaded with the district attorney to keep more people incarcerated. “As you’re aware I support and respect our police officers and our sheriff’s department,” said Logsdon, who added, “our laws have been a lot more lax the last couple of years. So you have to do something pretty bad now to be put in jail, or the House of Correction, because of the overcrowding.” Calling jail a “revolving door,” Logsdon asserted, “they’re getting out too easy. And with this said, this is why we’ve seen more violence. To me, this is violence.”

Choking back tears Lodgson declared, “it’s because our laws are getting lax. And they know it, and they’re abusing it. We need to be tough, that’s what law enforcement is. It’s to keep up the law.” Speaking through an increasingly tearful and shaky voice Logsdon added, “marijuana is illegal in Wisconsin, and you refuse to prosecute these people. And people are seeing this, and that’s why we’re having more and more violence in our county. I beg you to address this. Get a task force from another state, another municipality. We need to be aggressive, this has to stop.”

In Milwaukee, reports of instances of stop and frisk of Black residents are an estimated rate of 9.5 times higher than for white residents. The rate of “field interviews” is also 5.71 times higher for Black residents. Non-violent drug arrest rates for Black Americans remain disproportionate despite the rates of drug use being the same as whites. “If they really want to be tough on crime, as people supposedly want, annual cases against white people in Milwaukee County would increase from 8,000 to 29,000 cases,” says Meyn. “Does that look like what people want?” In that light, Meyn questions whether the current policies in Milwaukee’s criminal justice system are progressive at all.

“The bail system that we have right now does lock a lot of people up,” Glinberg tells Wisconsin Examiner. “And an important part of reform, to reduce the problem of mass incarceration, which as we all know disproportionately falls on the poor and people of color, we’re going to need to reduce our reliance on cash bail. And there have been some efforts to make reform in that direction. And I hope that this really ugly crime, and ugly set of facts, and unfortunate fact that Brooks was already out on a relatively low cash bail, doesn’t undermine the really necessary reform that we need to make to further reduce our reliance on cash bail. It will never be a zero-risk proposition to let people out but we have a system where people in this country enjoy a presumption of innocence. And where there’s a presumption of release on cash bond, and that cash bail is supposed to be imposed to ensure appearance and, again, I hope we can continue to make the reforms that will improve that system. Because the current cash bail system, in fact, locks up a lot of people and contributes to the problem of mass incarceration.”

Vishny hopes that people take a step back after the tragedy and resist the push for more punitive policies. “There has been, over District Attorney Chisholm’s tenure, progressive reforms,” says Vishny. “It’s happened slowly, and a lot more needs to occur. But those progressive reforms are not what’s responsible for this horrible tragedy in Waukesha. In fact, Milwaukee still sends a very large number of Black people to the Wisconsin state prison system and is a contributor to over-incarceration and mass incarceration. And there are a lot more reforms that need to occur.” Vishny calls the attacks on Chisholm “political opportunism on the part of members of the state Legislature to try and go after the Milwaukee district attorney’s office.”

Lawyers caution against push to change bail system after Waukesha tragedy was originally published by the Wisconsin Examiner.