There's a Backlash Brewing Against Bail Reform After The Parade Tragedy in Waukesha

 

Darrell E. Brooks, Jr., has become the poster boy for the backlash against bail reform.

The 39-year-old faces at least six counts of homicide for allegedly driving his maroon Ford Escape through a holiday parade in Waukesha, Wisc. on Sunday evening — only two weeks after being released on $1,000 cash bail for another act of vehicular aggression, in which he allegedly ran over a woman during an altercation.

"FREED DEMON" is how the tabloid New York Post cover headline put it on Tuesday, along with an editorial titled "Deadly result of progressive arrogance on bail reform."

Conservative analysts are pointing fingers at John Chisholm, the District Attorney of Milwaukee County, where the earlier incident happened. Chisholm, who took office in 2007, has been identified with the recent wave of "reformist prosecutors" who pledge to reduce incarceration and pre-trial detention — which can mean lower bail.

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Besides the cash bail, Brooks' Nov. 5 release was also contingent on his supervision by JusticePoint, a company that contracts with several county court systems in the region to monitor defendants awaiting trial. The company has been accused of failing to do its job by the MacIver Institute, a local conservative think tank. It didn't return messages from NPR requesting comment.

Simple logistics may also have played a role in Brooks' release.

"Milwaukee County, Waukesha County, Dane County — some of the more populated counties — were really backlogged," says Erika Bierma, a criminal defense attorney with Axley Brynelson, LLP. "A lot of courts in the populated counties may have re-evaluated bond decisions in a way that they wouldn't have done, pre-COVID."

Similar patterns have played out across the country during the pandemic, as courts sought to reduce jail crowding even as they struggled to catch up on delayed trials. In February, Brooks was released on $500 bail on an earlier set of charges, when the overbooked court system wasn't able to comply with his constitutionally-guaranteed right to a speedy trial.

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The backlash is also powered by the nation-wide increase in certain kinds of crime. Some police have blamed looser pre-trial release for a wave of shootings in New York, and complaints of impunity for quality of life crimes in San Francisco have set the stage for a recall election for the reformist District Attorney, Chesa Boudin. Experts argue about the link between reduced incarceration and rising crime.

Columbia Law School's resident expert in American cash bail systems, Kellen Funk, laments the current backlash, which he blames partly on the media.

"If the local jail is an inferno of death and disease, and prosecutors and judges are over-charging and over-detaining," he says, "in general our media and our voting public will be forgiving of that. But if one incident happens — one heinous thing happens — with someone who was released pre-trial, the papers will pick that up and the judge fears that they're going to hear about that come election time."

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