Republican bills force bail, undermine democratic change

Just two days before driving his SUV through a Christmas parade in suburban Milwaukee that killed six people and injured more than 60, Darrell Brooks Jr. posted bail on charges of domestic violence.

He had been accused of using his SUV to hit his child’s mother, and a preliminary assessment found Brooks to be at high risk of reoffending. But a court official set that bail at just $1,000 cash at the request of prosecutors, who later called their recommendation a mistake. For the parade murders, Brooks was sentenced to life in prison without the possibility of parole.

Brooks quickly became the figurehead of a Republican-backed effort to enact stricter 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 prison on bail.

GOP lawmakers in other states are also pushing to make it harder for defendants to get out of prison before they go on trial, after labeling themselves as tough on crime during the 2022 midterm elections. Their efforts have led to fierce battles with Democrats over public safety and the rights of criminal defendants.

Recent Democratic overhauls in states like Illinois and New York have sought to do away with cash bail and reduce pre-trial detention on the assumption that 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-bail crimes, requiring more people to pay bail in cash, and encouraging or requiring judges to consider a suspect’s criminal record when setting bail.

Criminal justice experts and advocacy groups warn that the Republican-backed measures are unsupported by research and could exacerbate crime rates and inequalities between rich and poor. Bail is intended to ensure that a defendant returns to court and should not be a punishment since the defendant has not yet been convicted.

“Cash bail does not benefit defendants or public safety,” said Shima Baradaran Baughman, a law professor at the University of Utah who studies bail.

“If people are detained for even a few days before being tried, they are significantly more likely to reoffend later on,” Baughman said. “In other words, it is much safer for the public to release most people for trial than it is to detain them.”

Defendants serving time in prison are much more likely to plead guilty to charges — often accepting deals that sentence them to pre-trial time that ends their incarceration, researchers from Harvard, Stanford and Princeton found in a 2018 study The same study found higher unemployment rates for pretrial detainees after they are released. It is not uncommon for defendants unable to post bail to lose their jobs and even their homes while in jail awaiting trial.

While Republicans seeking to broaden the use of bail acknowledge that people are legally presumed innocent before trial, some say they believe most defendants are ultimately guilty and society would be safer if more were locked up.

Georgia Senator Randy Robertson, a longtime deputy sheriff and former state president of the Fraternal Order of Police, said he is “extremely confident” that most of those arrested are guilty.

In February, the GOP-led Georgia state senate approved a proposal by Robertson 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 misdemeanor, and offenses like reckless driving or fighting in public. Robertson argues that victims feel the justice system doesn’t care about them when suspects are released without bail.

The measure requires triple felons to pay cash or bail, as well as those convicted of felonies in the past seven years. It also says that any defendant cannot be released without 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 put bail for all sorts of crimes and judges can’t release people, you’re absolutely acting on the presumption of innocence,” she said.

Rahman, a former public defender who helped draft bail laws in New York and other states, said the best research supports ending cash bail and offering personalized release terms 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 bail does is favor the amount of money someone has in their pocket, not public safety,” Rahman said.

Republican Senator Van Wanggard of Wisconsin, a former police officer who sponsored the constitutional amendment that gained momentum after the Waukesha parade murders, said he doesn’t believe imposing cash bail on more people or demanding a higher bail violates the presumption of innocence.

“If someone is a repetitive criminal, I’d rather that person be locked up than commit another crime,” Wanggaard said.

If the amendment is ratified by Wisconsin voters on April 4, judges determining bail would take into account the criminal history of someone charged with a violent crime. Wisconsin judges currently can only set bail as a means of ensuring someone returns to court. The measure would also require judges to publicly explain their reasons for the bail they set.

Opponents criticize the extensive list of crimes under the amendment as too broad, including watching a dog fight, violating a court order to contact criminal gang members and negligently leaving a firearm for a child to access.

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 also give judges more leeway to consider public safety and criminal histories.

In New York, bail has been a polarizing issue since the majority of Democrats passed a law in 2019 that would abolish pre-trial detention for most non-violent crimes. Many prosecutors, law enforcement officials, Republicans, and even some moderate Democrats argued that the changes endangered public safety.

Republican anti-crime candidates made big gains in New York City’s suburbs in 2022. And Democratic Governor Kathy Hochul, under pressure from voters, has said she wants to review bail laws this year to give judges more leeway in setting bail.

Democratic bail changes in Illinois hit roadblocks as the state Supreme Court struck down a new law that would have eliminated cash bail from Jan. 1. Prosecutors and sheriffs from 64 counties filed a lawsuit challenging the measure. The Supreme Court heard arguments about the lawsuit last week.

Baughman, a 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 to release before trial,” she said. “Poor defendants and people of color suffer the most damage when cash bail becomes the norm in a jurisdiction.”


Associated Press writer Jeff Amy contributed from Atlanta and writer Michael Hill contributed from Albany, New York.


Harm Venhuizen is a member of the Associated Press/Report for America Statehouse News Initiative. Report for America is a non-profit national service program that places journalists in local newsrooms to report on undercover issues. Follow Harry on Twitter.

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