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. had posted bail for charges of domestic violence.
He had been accused of using his SUV to run over the mother of his child, and a pretrial assessment found Brooks was at high risk of reoffending. But a court official set that bail at a mere $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 also are scrambling 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 fierce fight with Democrats over public safety and the rights of criminal defendants.
Recent Democratic overhaul measures in states such as Illinois and New York have sought to eliminate cash bail and lessen pretrial detention on the premise they do more harm than good, especially to marginalized groups.
But Republican lawmakers in at least 14 states have introduced some 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 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 the Republican-backed measures are not supported by research and could worsen crime rates and disparities between rich and poor. Bail is meant to ensure a defendant returns to court and is not supposed to be a punishment, since the defendant has not yet been convicted.
“Cash bail is not a benefit to defendants or to public safety,” said Shima Baradaran Baughman, a law professor at the University of Utah who studies bail.
“When people are detained before trial even for a few days, they are dramatically more likely to reoffend later,” Baughman said. “In other words, it is much safer to the public to release most people before trial than to detain them.”
Defendants jailed before trial are much more likely to plead guilty to charges — often accepting deals that sentence them to time already served that end their detainment, researchers from Harvard, Stanford and Princeton found in a 2018 study. The same study found higher unemployment rates for pretrial detainees after they’re released. It’s not uncommon for defendants who can’t make bail to lose their jobs and even their homes while in jail awaiting trial.
While Republicans seeking to widen the use of bail acknowledge people are legally presumed innocent before trial, some say they believe most defendants are ultimately guilty and that society would be safer if more are 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 arrestees are guilty.
In February, the GOP-led Georgia state Senate passed a Robertson proposal that would add 53 offenses 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 argues that victims feel the justice system doesn’t care about them when suspects are released without cash bail.
The measure requires three-time felons to post cash or property bail, as well as those with felony convictions in the past seven years. It also says any defendant can’t be released without posting bail unless they appear before a judge.
The measures in Georgia, Wisconsin and elsewhere worry Insha Rahman, vice president of advocacy and partnerships at the Vera Institute for Justice. “When you are setting money bail on all kinds of offenses and judges can’t release people, you are absolutely treading on presumption of innocence,” she said.
Rahman, a former public defender who helped design bail laws in New York and other states, said the best research supports ending 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 detained until trial.
“All money bail does is privilege the amount of money someone has in their pocket, not public safety,” Rahman said.
Wisconsin Republican Sen. Van Wanggard, a former police officer who sponsored the constitutional amendment that gained traction after the Waukesha parade killings, said he does not believe imposing cash bail on more people or requiring higher bail violates the presumption of innocence.
“If someone is a repetitive criminal, I surely would rather have that individual locked up than out committing another crime,” Wanggaard said.
If ratified by Wisconsin voters on April 4, the amendment would let judges setting bail consider the criminal history of someone accused of a violent crime. Wisconsin judges currently can only set bail as a means to ensure someone returns to court. The measure also would require judges to publicly lay out their reasoning for the bail amounts they set.
Opponents criticize as overbroad the expanded list of crimes under the amendment, including watching a dog fight, violating a court order against contacting criminal gang members and negligently leaving a firearm where a child gains access to it.
Ohio voters passed a similar amendment in November, requiring judges to consider a suspect’s threat to public safety when setting bail. Bills in Indiana and Missouri would likewise give judges more latitude to consider public safety and criminal histories.
In New York, bail has been a polarizing issue since majority Democrats passed a 2019 law abolishing pretrial incarceration for most nonviolent offenses. Many prosecutors, police officials, Republicans and even some moderate Democrats argued the changes threatened public safety.
Republican candidates running against crime 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 revisit bail laws this year to give judges more leeway when setting bail.
Democratic bail changes in Illinois ran into roadblocks when the state Supreme Court halted a new law that would have eliminated cash bail beginning 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 would likely 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 of release before trial,” she said. “Poor defendants and people of color are most harmed when cash bail becomes the norm in a jurisdiction.”
