Bail amounts need to take threat level into account

High threat offenders don’t deserve breaks on bail amounts.

Darrell Brooks, 39, should have been behind bars on November 24 rather than behind the wheel of a car.

Brooks is the Milwaukee man accused of killing six people and injuring dozens of others by ramming his SUV through the annual Waukesha Christmas parade celebration. Just days before the Waukesha attack, Brooks was released on a $1,000 cash bail for allegedly running over his girlfriend in a felony domestic violence case.

Had the system worked like it was supposed to, six people would not be dead right now. The system did not work. In the words of Milwaukee District Attorney John Chisholm’s office, the bail amount was “inappropriately low.”

According to the American Bar Association, “Bail is the amount of money defendants must post to be released from custody until their trial. Bail is not a fine. It is not supposed to be used as punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present.”

Section 969.01 of Wisconsin state statutes spells out the factors court commissioners must take into account when setting the bail amount. The most significant factors are the following: criminal record; nature of the charges (whether they are violent); ability to post cash for bail; ties to the community such as family, school, and employment; whether the person has been out on bail in the past and whether he or she has made all of his or her court dates and followed the bail conditions.

Given Brooks’ record and the severity of his offense, the laughably low bail he was given showed a major failure in the system and highlights the lack of uniformity in bail amounts, not only from county to county but from one court commissioner to another.

A good first step in addressing the problem is for the state court system to adopt statewide the assessment tool used by some law enforcement agencies to determine which domestic abuse situations are most likely to escalate to deadly violence. The risk is that the assessment is intended to try to prevent domestic violence situations from escalating, its subjective nature tends to skew toward greater perception of risk. Given the inherent goal to protect life and property, this is an acceptable level of risk.

If the state court system is unwilling to adopt this uniform standard as a rule, the state legislature must act to add such a tool to the law.

The legislature must also take action on addressing the institutional problems of the court system to eliminate court backlogs which lead to delays in prosecution allowing offenders time to reoffend. While fixing institutional problems with the criminal justice system due to the lack of judicial resources isn’t as headline grabbing as politically opportunistic rants against specific offenders, it is essential to prevent other senseless tragedies from occurring.