Wisconsin Republicans are pushing to amend the state constitution to make it harder for criminal defendants to get out on bail, hoping to capitalize on anger over the killing of six people by a driver who was out on bail when authorities say he plowed into a Christmas parade near Milwaukee.
The Assembly's judiciary committee scheduled a public hearing on the amendment for Wednesday. Republicans have focused much of their anger over the Waukesha parade deaths on the $1,000 bail that Democratic Milwaukee County District Attorney John Chisholm's office recommended for the defendant in an earlier case. They've called for tougher bail assessments and for Chisholm's job.
The Wisconsin Constitution states that court officials can set bail only to assure that a defendant appears in court. The amendment proposed by state Rep. Cindi Duchow and state Sen. Van Wanggaard would require courts to consider the totality of the circumstances, specifically the threat the defendant poses, the seriousness of the charges, the probability the defendant won’t reappear in court, the need to protect the community from harm and whether the defendant might intimidate witnesses.
The proposal is a long way from being included in the constitution. To amend the document, a proposal would have to be passed during two consecutive legislative sessions and in a statewide referendum. The governor plays no role in authorizing constitutional amendments.
Duchow and Wanggaard have proposed the bail amendment in each of the last two legislative sessions to no avail, but they have momentum now because of the parade deaths.
“Our current bail system is not properly balancing public safety and the presumption of innocence," Duchow said in a statement. "We should empower judges and court commissioners to set common-sense, constitutional parameters for pre-trial release.”
Authorities allege that Darrell Brooks drove his Ford Escape into the parade on Nov. 21 in downtown Waukesha, ignoring police who tried to stop him. Six people were killed and more than 60 were injured. He's been charged with 77 counts, including six counts of first-degree intentional homicide.
Authorities haven't suggested a motive, but they allege in charging documents that Brooks beat the mother of his child minutes before he drove into the parade. They say he was angry that she refused to bail him out of jail after he was arrested for allegedly running her over with the same vehicle earlier in November.
Brooks was arrested for the alleged attack on his child's mother in neighboring Milwaukee County. He walked out of jail on Nov. 19, two days before the parade, after posting $1,000 bail.
Chisholm has taken intense criticism for allowing his office to recommend such low bail for Brooks. The district attorney has said his office faces a backlog of cases due to COVID-19 and that an overworked, inexperienced assistant prosecutor made the $1,000 recommendation so that she could move on to other cases. She never saw Brooks' risk assessment because it never made it into his office's computer system, Chisholm said.
Chisholm has pushed to end cash bail, saying it’s not fair to poor defendants. He wants a new system in which only violent offenders are jailed until trial. That stance hasn't gone over well with Republicans, particularly those who represent Waukesha and other conservative Milwaukee suburbs. They blame Chisholm for enabling the parade attack.
A group of Milwaukee County taxpayers filed a complaint with Gov. Tony Evers in December demanding that he remove Chisholm from office. Evers, a Democrat, refused to take any action against Chisholm after an attorney Evers hired found the group's complaint was rife with technical legal mistakes.
Groups are lining up in opposition to the bail amendment. The state public defender's office warned in written remarks to the Senate judiciary committee last month that the changes would result in more pretrial detentions of people who are supposed to be presumed innocent and don't pose a serious risk to the community, as well as court officials setting excessive bail amounts.
The office said a better alternative would be to use a risk assessment to determine if someone should stay in jail or be released, and that money shouldn't enter into the equation. According to the office, 22 states and the federal courts use such a system. The State Bar of Wisconsin also advocated for moving away from cash bail for low-risk defendants in remarks to the Senate committee.
Craig Johnson, president of the board of the Wisconsin Justice Initiative, a nonprofit that works to ensure defendants are treated fairly, acknowledged in written remarks to the Assembly committee that the parade deaths have sent a “shockwave” across the state. But the problem wasn't that no one assessed Brooks' risk to the community — an evaluation was indeed done — but that no one saw it, Johnson said.
“We must remember," he wrote, “that unnecessary pretrial detention has societal costs and creates a two-tiered justice system — one for the rich, and one for the poor."
