Do Wisconsin's bail laws need to change after the Waukesha Christmas parade tragedy?

Concerns arose after the bail set for Darrell Brooks, the suspect in the Waukesha parade attack, was deemed inappropriately low
Christmas Parade SUV
Posted at 7:14 PM, Dec 17, 2021
and last updated 2021-12-17 20:14:58-05

MILWAUKEE — In the state of Wisconsin, bail is meant to ensure that a person returns to their scheduled court date, sort of like a security deposit.

After the bail set for Darrell Brooks, the suspect in the Waukesha Christmas parade tragedy, was deemed inappropriately low, the I-Team asked multiple players in the state’s court system if the bail laws in the state need to change, and if so, how.

We started with former Wisconsin Supreme Court Justice Janine Geske, a distinguished professor of law at the Marquette Law School.

“The idea of bail isn't to say 'you're caught for one, so we'll lock you up now so you don't commit others,'” Geske said. “That's not the way our constitution works. But, it has to be reasonable bail. You have to consider all these factors. When someone released on so little bail when a very bad record and bail jumping and failure to appear, it should have been higher bail.”

She says there’s always pressure on these cases because the defendant is presumed innocent until proven guilty.

“When you set $100 bail on someone, he or she may not be able to post that money,” Geske said. “They may sit in jail for 90 days or 120 days waiting for trial. Even if they're acquitted down the road, no one pays them back for that time.”

Milwaukee County online court records show the prosecutor assigned in the Brooks case handled 45 felony total domestic abuse cases where bail was set at $1,000 or less. In 10 of them, the defendant was charged with another felony while awaiting trial.

DA: Overworked assistant set bail too low for parade suspect

Milwaukee County District Attorney John Chisholm called the $1,000 bail in the Brooks case “inappropriately low,” however, he still said the idea of cash bail in general was one he was in favor of doing away with.

Attorney Kate Judson has spent a lot of time researching cash bail laws. She’s the Executive Director of the Center for Integrity in Forensic Science, a group focused on researching and promoting evidence-based practices in the criminal justice system.

“While this is unquestionably a tragedy, I don't think the right thing to do is to further restrict others who have not committed these very serious crimes but who are accused and presumed innocent,” Judson said.

She said cash bail can disproportionally affect communities of color and people in poverty, while also putting a financial burden on the system.

“Across the country American taxpayers pay $14 billion to hold people who are presumed innocent,” she said. “People prior to trial and that's just not a good system.”

Judson points to data from The Bail Project, an organization that has been pushing to end cash bail.

According to their 2021 annual report, the organization covered bail for more than 1,200 people in Cook County, Illinois, which includes the city of Chicago. The group reports 96 percent of those people have returned to their court date.

Judson notes there are times when holding a person may be appropriate, but on a case-by-case basis, especially in domestic abuse cases.

According to the most recent data posted by the Wisconsin Department of Justice, there were more than 22,000 cases of domestic abuse in 2018.

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“So what we're suggesting is if the right thing to do is to hold over 20,000 people in jails and prisons until their day in court, even though they're presumed innocent,” Judson said. "That's deeply problematic, that's expensive and it's unjust.”

The I-Team also asked Wisconsin Attorney General Josh Kaul what his take was on the Brooks case, and bail in Wisconsin.

“There's not a system where you try to set a dollar amount at a certain level and ultimately hope that somebody who you think is dangerous can't raise that amount of money to pay for bail,” Kaul said.

He pointed to his time as a federal prosecutor, saying lawmakers should consider revising the pre-trial system to something more closely resembling federal detention hearings.

In federal court, the defendant requests bail, and the detention hearing is used to determine what to do with the defendant.

Kaul says as a federal prosecutor, he would often argue whether to hold the defendant without bail ahead of trial in those detention hearings.

“That system focuses on what we all agree are the two critical factors,” Kau said. “The dangerousness to the person who's charged with a crime and their risk of flight, and generally speaking, if they are a danger or risk of flight under the federal system, they're detained pending trial.”

Republican lawmakers have also announced plans to propose a change to the Wisconsin Constitution, allowing judges the ability to deny bail in certain cases to protect the community.

Kaul also suggested putting more resources towards the district attorneys' offices, the circuit courts and the public defenders' offices to help them cover increasing caseloads.