Our current cash bail system isn’t keeping people in or out of jail based on lethality—and it should be.
On Nov. 21, 2021, Darrell Brooks was arrested for driving a car into a crowd of people attending and performing at a Christmas parade in Waukesha, Wis., killing six and injuring over 60 more. At the time, Brooks had two pending criminal cases against him for violent offenses: (1) second-degree endangering safety and possession of a firearm by a felon in one case; and (2) second-degree recklessly endangering safety, bail jumping, disorderly conduct and battery as an act of domestic abuse in the other–and had been released from jail on $500 and $1,000 bails, respectively. Brooks had both a criminal history as well as finding of “high risk” from a pretrial risk assessment when his $1,000 bail was set.
Brooks’ $500 bail set in his prior case had originally been set at $10,000, and then reduced to $7,500. However, the criminal courts in Waukesha had become clogged with cases, largely due to COVID-19 closures, which resulted in in-custody defendants—those that were unable to afford bail prior to trial—who could not have their trials commence in a speedy manner. Under Wisconsin law, defendants’ right to “speedy trial” requires it to commence within 90 days after being demanded by a defendant. If the prosecution is unable to meet this right afforded to the defendant, then the prosecution must either dismiss the defendant’s case or release the defendant from jail after the 90 days has passed. And for that reason, Brooks was unfortunately released.
Wisconsin is not alone—states from California to Nevada have a story about alleged violent offenders being released on bail prior to trial. The only difference between these other cases and Darrell Brooks: people thought Darrell Brooks’ bail amount was too low and that his low bail amount was the reason he was able to commit another horrific, violent offense.
Looking through the lens of a cash bail system, most would agree that Darrell Brooks bail was indeed set too low. Even taking into account that Wisconsin does not allow commercial bonding–which generally allows someone to pay a 10-15 percent nonrefundable amount to a bondsman who pledges to pay the full bail amount to the court should the defendant not appear–with several previous violent offenses and a high risk assessment score, society expects more from their criminal justice system. However, focusing solely on Darrell Brooks’ bail amount ignores other key factors—including the rights guaranteed by the U.S. Constitution, current flaws in our criminal justice system—causing issues like backlogged courts—and what bail reform actually entails.
Weighing Personal Liberty versus Public Safety
It’s important to note that because there is no constitutional right to bail, the most high-risk, violent offenders can still be held without bail when public safety outweighs personal liberty. In fact, removing the spectrum of cash bail options could result in an increased number of violent offenders being subjected to pretrial detention, since no judge wants to release a person mistakenly who presents a risk to the community.
The reality, however, is that the cash bail system—the process by which defendants are released from jail in exchange for paying money—is broken. Calling the system “broken” does not mean violent offenders should be released out on the street to walk free, but rather the opposite. As instance after instance shows, the bail system in our country isn’t currently keeping people in or out of jail based on their level of lethality. Rather, this system often releases violent offenders who have the money or connections while keeping confined those with low-level offenses, no signs of risk, but also no means to pay.
Generally, the bail system exists for two purposes: supporting public safety and ensuring that the accused returns to court for criminal proceedings. And while there is no “right to bail,” our Constitution demands that “excessive bail” not be imposed. The prohibition of excessive bail, coupled with the fundamental right of presumption of innocence, is the reason the majority of defendants are released on bail pending trial. As the United States Supreme Court has said, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
Bonds, Bondsmen and the Broken Bail System
Regardless, as a public safety-minded prosecutor in Colorado, I was consistently baffled at how often a court set low bail amounts for defendants with violent crimes. It was just as perplexing at how quickly alleged offenders got out of jail even when the court set high bail amounts. It didn’t help that bondsmen were allowed to monetize people’s freedom for their own financial gain. And while Wisconsin doesn’t allow for commercial bonding, Darrell Brooks may have still easily been released on bail even if the amount was set five times higher, with the help of friends or family as a surety.
I can recall several similar cases in court. Once, a judge gave a personal recognizance (PR) bond to a defendant arrested on a misdemeanor domestic violence charge. Not long after, the defendant was arrested again for violation of a protection order—a crime in Colorado—with the same victim. We started playing this game of catch and release, with the judge setting a slightly higher bail amount for the defendant each time he was rearrested on new charges. After his eighth or ninth offense, the judge finally succumbed to my requests of a $50,000 bond. But even after the imposition of such a huge sum, the defendant was in jail for only a week before a bondsman helped him get back out on the street.
In a more tragic case, and in my previous role as victim advocate, a defendant was arrested for a domestic violence offense and released on a PR bond. Like the previous defendant, this defendant went back and forth, in and out of jail, picking up new cases. With each new case, the judge increased the defendant’s bail. On the fourth occasion that the defendant posted bail, a $5,000 bond, he broke into a home where he believed his girlfriend resided, then shot and killed one individual and injured another.
Setting a higher monetary bond does not ensure someone will stay locked up—especially not in states that allow for commercial bonding. So if our current system isn’t working, our options are to start setting excessively high bails, removing bail as an option entirely or reforming our bail system.
Should we choose the former rather than the latter—prioritizing detention over liberties— one can land on a slippery slope. At some point, we would need to start building bigger jails, hiring more deputies and making sure taxpayers are ready for the increases to pay for it. If we are looking to try and remove all of the risk to public safety through pretrial detention, we are going to have to be ready for these tradeoffs. But even these tradeoffs wouldn’t eliminate all risk, and perhaps more importantly, they would require sacrificing our fundamental right to be presumed innocent until proven guilty.
Further, increased pretrial detention may actually result in an increase in crime when those individuals eventually do get released. Research has shown pretrial detention increases rates of recidivism upon release regardless of guilt or innocence. And then, of course, there are the people—approximately 30-45 percent without an arrest or conviction respectively—who commit horrible and heinous acts who have little-to-no criminal history.
Bail reform will help make sure people don’t remain in jail based solely on their inability to pay for their release pending trial, and instead align the system with “dangerousness” and flight risk, as intended. This is especially important since research has shown that nearly a third of felony cases are dismissed or result in acquittal.
Just as I had several cases of people getting out on high bails, I also remember many cases during the “in custody” docket in which defendants would plead guilty to offenses just to get out of jail. In hindsight, I’m troubled by how many of those individuals were being held in jail on low-level offenses—like driving under restraint—merely because they couldn’t afford their low bail.
This is why bail reform is so necessary.
Reforming Our Bail System
Bail reform does not mean that radical alternatives need to be added to our current system. But it does mean we need to be looking for alternatives to pretrial detention for individuals who do not present a danger to the community. Restricting someone’s freedom through pretrial detention should only be used for the high-risk, violent offenders. Pretrial detention should be the exception, not the norm.
As it pertains to non-violent offenders, there are plenty of options that have already been implemented in several jurisdictions. These include:
- Pretrial risk assessments are predictive tools that attempt to estimate a person’s potential risk of re-offending using a scored questionnaire examining certain criminogenic factors. The risk assessment is then given to the judge presiding over the bail hearing to help direct his or her decision on bail.
- Home detention confines someone to their home when not engaging in rehabilitative or pro-social activities like school or work. Home detention often requires the defendant to use a tracking system so their whereabouts can be monitored.
- Pretrial Support and Supervision Services can include drug testing, drug treatment, electronic monitoring and supervision by a pretrial services officer. It could also include support for mental health, childcare and transportation.
- Other conditions of bail can include relinquishing weapons, following conditions of a protection order, etc.
All of these alternatives to cash bail or incarceration have shown promise without completely violating someone’s freedom prior to conviction. It is key, though, that these tools are in place and used appropriately should cash bail be pushed back. And there would continue to be a pretrial detention—without a right to bail—option when the “proof is evident and the presumption is great” that an individual has committed a violent crime.
To be sure, what happened in Waukesha, Wis. is nothing short of horrific tragedy that highlights the flaws of our current systems. But the ongoing balancing of public safety with the preservation of individual civil liberties is an exceedingly difficult task with potentially harmful consequences for both the accused and their communities.
The reality is, bail reform is a work in progress. Yet, the determining factor for release or confinement should not be a monetary one. There is no established dollar amount that guarantees public safety or a return to court for future judicial proceedings. We cannot let “perfect” be the enemy of the “good”—or in this case, something smarter, safer and fairer—and we certainly cannot operate as a society of “guilty until proven innocent.” The fight for bail reform must continue, with instances like this one informing where, how and why.