MADISON, Wis. (AP) – Just two days before he drove his SUV through a suburban Milwaukee Christmas parade, killing six people and injuring more than 60, Darrell Brooks Jr. he posted bail on domestic violence charges.
He is accused of running over the mother of his child with his SUV, and a pretrial evaluation found Brooks to be at high risk of reoffending. However, a court official set that bail at just $1,000 cash at the request of prosecutors, who later called the recommendation a mistake. For the parade killings, Brooks was sentenced to life in prison without the possibility of parole.
Brooks quickly became the poster child for the Republican push for tougher bail policies. Wisconsin’s Republican-controlled Legislature is asking voters to ratify a constitutional amendment that would make it harder for violent criminals to get out of jail on bail.
GOP lawmakers in other states are also fighting to make it harder for defendants to get out of jail before trial after branding themselves as tough on crime in the 2022 midterm elections. Their efforts led to a bitter battle with Democrats over public safety and the rights of those accused of crimes.
Recent Democratic overhaul measures in states like Illinois and New York have sought to eliminate cash bail and reduce pretrial detention on the grounds that they do more harm than good, especially to marginalized groups.
But Republican lawmakers in at least 14 states have introduced about 20 bills so far this year to do just the opposite. Their proposals include increasing the number of non-bailable offenses, requiring more people to post cash bail and encouraging or requiring judges to consider a defendant’s criminal record when setting bail.
Criminal justice experts and advocacy groups warn that the Republican-backed measures are not supported by research and could worsen crime rates and disparities between rich and poor. Bail is intended to ensure that the accused returns to court and should not be a sentence, as the accused has not yet been convicted.
“Cash bail is not a benefit to defendants or to public safety,” said Shima Baradaran Baughman, a University of Utah law professor who studies bail.
“When people are detained pretrial even for a few days, they are dramatically more likely to reoffend later,” Baughman said. “In other words, it is much safer for the public to release most people before trial than to detain them.”
Defendants incarcerated before trial are much more likely to plead guilty to the charges — often accepting plea deals that end their incarceration, researchers from Harvard, Stanford, and Princeton found in a 2018 study. The same study showed higher unemployment rates for detainees after release. It’s not uncommon for defendants who can’t make bail to lose their jobs and even their homes while they’re in jail awaiting trial.
While Republicans who want to expand the use of bail acknowledge that people are legally presumed innocent before trial, some say they believe most defendants are ultimately guilty and that society would be safer if more were locked up.
Georgia Sen. Randy Robertson, a longtime sheriff’s deputy and former state president of the Fraternal Order of Police, said he was “extremely confident” that most of those arrested were guilty.
In February, the GOP-led Georgia state Senate passed a proposal by Robertson that would have added 53 felonies to the current list of just seven charges that always require cash or property bail. The new offenses include passing a bad background check, which can be a misdemeanor or a felony, and misdemeanors like reckless driving or fighting in public. Robertson argues that victims feel the justice system doesn’t care about them when suspects are released without bail.
The measure requires three-time felons to post cash or property bail, as well as those with felony convictions within the past seven years. It also says that any accused cannot be released without paying bail unless he appears before a judge.
Measures in Georgia, Wisconsin and elsewhere worry Insha Rahman, vice president for advocacy and partnerships at the Vera Institute of Justice. “When you set bail for all kinds of misdemeanors and judges can’t release people, you absolutely trample on the presumption of innocence,” she said.
Rahman, a former public defender who helped craft bail laws in New York and other states, said the best research supports eliminating cash bail and offering personalized release conditions for most defendants. People who pose a “clear and immediate” threat to public safety are the exception, she said, and should be held pending trial.
“All bail does is privilege the amount of money someone has in their pocket over public safety,” Rahman said.
Wisconsin Republican Sen. Van Wanggard, a former police officer who sponsored a constitutional amendment popularized after the Waukesha parade killings, said he does not believe that posting cash bail for more people or requiring higher bail violates the presumption of innocence.
“If someone is a repeat offender, I would certainly rather have that person incarcerated than commit another crime,” Wanggaard said.
If ratified by Wisconsin voters on April 4, the amendment would allow judges setting bail to consider the criminal history of someone accused of a violent crime. Judges in Wisconsin can currently set bail only as a means of ensuring that someone returns to court. The measure would also require judges to publicly state their reasoning for the bail amounts they set.
Opponents criticize the expanded list of crimes under the amendment as too broad, including watching dog fights, violating a court order against contacting gang members and negligently leaving a firearm where a child has access to it.
Ohio voters passed a similar amendment in November, which requires judges to consider a suspect’s threat to public safety when setting bail. Bills in Indiana and Missouri would also give judges more leeway to consider public safety and criminal histories.
In New York, bail has been a polarizing issue since a majority of Democrats passed legislation in 2019 that would end pretrial detention for most nonviolent crimes. Many prosecutors, police officials, Republicans and even some moderate Democrats argued that the changes threatened public safety.
Crime-fighting Republican candidates have made big gains in suburban New York in 2022. And Democratic Gov. Kathy Hochul, under pressure from voters, has said she wants to revisit bail laws this year to give judges more freedom in setting bail.
Democratic bail changes in Illinois hit roadblocks when the state Supreme Court blocked a new law that would have eliminated cash bail starting Jan. 1. Prosecutors and sheriffs from 64 counties sued the measure. The Supreme Court heard arguments on the lawsuit last week.
Baughman, the Utah law professor, said the Illinois law is likely to both free more people before trial and improve public safety.
“We are the only country in the world that makes defendants pay money to get their constitutional right to be released before trial,” she said. “Poor defendants and people of color are harmed the most when cash bail becomes the norm in a jurisdiction.”
Associated Press writer Jeff Amy contributed from Atlanta and staff writer Michael Hill from Albany, New York.
Harm Venhuizen is a staff member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on hidden issues. Follow Harm on Twitter.