by Just two days before he drove his SUV through a Christmas parade in suburban Milwaukee, killing six people and injuring more than 60, Darrell Brooks Jr. posted bail on domestic violence charges.
He had been accused of using his SUV to run over the mother of his child, and a pre-trial assessment found Brooks to be at high risk of reoffending. But a court official set bail at just $1,000 cash at the request of prosecutors, who later called their 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 a Republican-backed push to enact tougher bail policies. The Republican-controlled Wisconsin 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 trying 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 have led to a bitter battle with Democrats over public safety and the rights of criminal defendants.
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 for marginalized groups.
But Republican lawmakers in at least 14 states have introduced about 20 bills so far this year to do the opposite. Their proposals include increasing the number of non-bailable offenses, requiring more people to pay 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 inequality between rich and poor. Bail is intended to ensure that a defendant returns to court and is not intended to be a punishment, since the defendant has not yet been convicted.
“Cash bail is not a benefit to the defendant or to public safety,” said Shima Baradaran Baughman, a University of Utah law professor who studies bail.
“When people are held in pretrial detention for even 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 arrest them.”
Defendants who are incarcerated before trial are much more likely to plead guilty to the charges — they often accept deals that sentence them to time already served that ends their pretrial detention, researchers from Harvard, Stanford and Princeton found in a 2018 study. The same the study found higher unemployment rates for pretrial detainees after they are released. It is not uncommon for defendants who cannot make bail to lose their jobs and even their homes while they are 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 is “extremely confident” that most of those arrested are guilty.
In February, the GOP-led Georgia state Senate passed a Robertson bill that would add 53 felonies to a current list of just seven charges that always require cash or property bail. The new offenses include passing a bad check, which can be a misdemeanor or a felony, and such misdemeanors as reckless driving or fighting in public. Robertson claims 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 who have been convicted of crimes in the past seven years. It also states that any defendant cannot be released without posting bail unless they appear before a judge.
The moves in Georgia, Wisconsin and elsewhere worry Insha Rahman, vice president of advocacy and partnerships at the Vera Institute for Justice. “When you set bail for any type of offense and judges can’t release people, you’re absolutely trampling 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 ending cash bail and offering personal 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 in custody until trial.
“All that bail does is privilege the amount of money someone has in their pocket, not public safety,” Rahman said.
Republican Sen. Van Wanggard of Wisconsin, a former police officer who sponsored the constitutional amendment that gained traction after the Waukesha parade killings, said he doesn’t believe adding cash bail or requiring higher bail violates the presumption of innocence.
“If someone is a repeat offender, I’d certainly rather have that person locked up than out committing another crime,” Wanggaard said.
If ratified by Wisconsin voters on April 4, the amendment would allow judges who set bail to consider the criminal history of someone accused of a violent crime. Wisconsin judges can currently only set bail as a means of ensuring that someone returns to court. The measure will also require judges to publicly present the reasons for the bail amounts they set.
Opponents criticize the expanded list of crimes under the amendment as overreaching, including witnessing a dog fight, violating a court order against contacting criminal gang members and negligently leaving a firearm within reach of a child.
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 majority Democrats passed a 2019 law that abolished pretrial detention for most nonviolent offenses. Many prosecutors, law enforcement officials, Republicans and even some moderate Democrats argued that the changes threatened public safety.
Anti-crime Republican candidates saw big gains in New York City’s suburbs in 2022. And Democratic Gov. Kathy Hochul, under pressure from voters, has said she wants to overhaul bail laws this year to give judges more leeway in setting bail.
Democratic bail changes in Illinois ran into 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 had sued, challenging 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 release more people before trial and improve public safety.
“We are the only country in the world that forces defendants to pay money to obtain a constitutional right to release before trial,” she said. “Poor defendants and people of color are hurt the most when cash bail becomes the norm in a jurisdiction.”
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Associated Press writer Jeff Amy contributed from Atlanta and writer Michael Hill contributed from Albany, New York.
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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.
