This story was republished on Jan. 17, 2022 to make it free for all readers.
The Waukesha Christmas Parade suspect’s bail in an earlier felony domestic violence case was considerably lower than the average of similar open cases charged this year in Milwaukee County, a Milwaukee Journal Sentinel analysis found.
That Brooks was free on bail in a case in which he was charged with punching and running over a woman with the same SUV he is accused of using to kill and injure those at the parade has stoked widespread outrage, much of it directed at Milwaukee County District Attorney John Chisholm, and proposals to change bail policy in Wisconsin.
Less than 24 hours after the parade attack, Chisholm’s office released a statement saying a prosecutor had recommended an “inappropriately low” $1,000 bail in Brooks’ earlier felony domestic violence case.
The Journal Sentinel sought to find out if the bail amount was an anomaly, as Chisholm’s office suggested.
Reporters requested a list of open felony bail jumping and recklessly endangering safety cases, two of the charges Brooks faced in that earlier case, from the Milwaukee County Clerk of Courts. Prosecutors often use the charge of bail jumping when someone who is out on bail in another case is charged with a new crime.
Among the roughly 800 cases, the Journal Sentinel identified 50 open cases with both charges filed this year. Reporters then went through all 50 cases individually to gather bail amounts and other data points. All the cases also included at least one other criminal charge.
The Journal Sentinel analysis found:
Bail ranged from $1,000 to $100,000.
The median bail was $5,000 in 34 of the cases with second-degree recklessly endangering safety, the specific degree faced by Brooks. All four of the $1,000 bails were in the second-degree grouping.
The median bail for first-degree recklessly endangering safety cases was $25,000. A first-degree charge is more serious than second-degree.
Nine of the 50 cases included charges related to domestic violence. Of those nine, Brooks had the lowest bail at $1,000. The next lowest bail was $2,500. The highest was $75,000.
Defendants posted bail in about 36% of all cases and nearly half the time in the second-degree recklessly endangering safety cases.
On average, those who posted bail did so within three weeks of being charged.
Chisholm declined an interview request from the Journal Sentinel to discuss its findings and the status of his internal review. A spokesman for his office said Chisholm will address the subject of bail Thursday during a public County Board committee meeting.
In the earlier statement, Chisholm's office said the bail recommendation was not consistent with the office’s approach involving violent crime, nor consistent with the risk assessment of the defendant.
In Brooks' case, the assigned assistant district attorney, Michelle A. Grasso, who graduated from law school in 2019, did not appear at the hearing where bail was set. Instead, Assistant District Attorney Carole Manchester, a longtime prosecutor, represented the state. Court Commissioner Cedric Cornwall approved the $1,000 bail.
The Journal Sentinel analysis reflects the bail set by a court commissioner or a judge. Online court records do not include the prosecutor’s recommendation, so it’s not known if prosecutors had recommended higher or lower amounts than the set bail in these cases — just one of many limitations with public court data.
Across the country, courts and the counties that run them typically do not collect reliable, uniform data that can be compared across jurisdictions in a timely way.
The nonprofit Measures for Justice has tried to fill that void, but even its information is dated. The organization analyzed court data, including bail amounts, for Wisconsin and several states and found the median bail from 2011 to 2015 in Milwaukee County for a violent felony was $5,000, compared with $3,500 in Kenosha and Racine counties and $3,000 in Dane County.
What is considered when setting bail in Wisconsin
Wisconsin is one of a handful of states with cash bail, meaning people have to post the full amount in cash to be released from custody. It does not have a commercial bail-bond system, where people pay a percentage of bond to a private company, which in turn pays the full bail amount to the court.
Historically, bail was to ensure people have a financial incentive to return to court. Many states began to allow judges to consider risk to public safety in setting bail conditions in the 1980s, as a response to the rise in crime and public fear of violence in the 1970s. Wisconsin was one of those states.
In Wisconsin, judges can only use cash bail amounts to help ensure a person's reappearance in court. When setting other terms of bail, such as ordering a defendant not to have contact with a victim, a judge can then consider protecting the community from danger and preventing witness intimidation.
Many state and local jurisdictions have adopted risk assessments over the past decade or so to help guide decisions about setting bail.
Milwaukee County uses the Public Safety Assessment, which examines nine factors, such as age, pending cases and past failures to appear in court. Those data points are used for the risk assessment, which typically is not public record, and can be considered by a judge. Defense attorneys and prosecutors also make bail recommendations to the court official. The Public Safety Assessment is one of the most commonly used risk assessment tools in courts across the country.
Risk assessments have come under criticism, with some criminal justice experts arguing they reinforce bias and are not individualized.
Jurisdictions that have abolished cash bail, such as Washington, D.C., and New Jersey, see nearly 90% of those released return to court, while the 6% or so who are truly dangerous get detained, said Spurgeon Kennedy, program director at the Arlington, Va.-based Justice Management Institute and president-elect of the National Association of Pretrial Services Agencies.
He noted that Wisconsin’s preventive detention law allows dangerous people to be held without bail but said many prosecutors and judges don’t use it enough and still fall back on cash bail.
Kennedy said he thought Brooks, for one, should have been detained and called Brooks’ $1,000 bail “ridiculous.”
“If you really think a person's a danger, and you have a preventive detention statute, you use it,” he said.
Wisconsin is among about 20 states that have such laws, which allow judges to order defendants held without bail for certain violent crimes. But recklessly endangering safety — Brooks’ most recent charge before the parade — is not one of the crimes covered under the law.
Michele LaVigne, a former director of the Public Defender Project at the University of Wisconsin-Madison, said the preventive detention statute “is oddly not used in this state” but said Brooks’ earlier cases would not have met the threshold for using it.
“None of this guy’s cases would have qualified for preventive detention so bail had to be set,” she said.
Even for qualifying offenses like homicide, prosecutors eschew preventive detention.
The law requires prosecutors to convince a judge the defendant committed the qualifying crime, and that release, even with conditions, would not adequately protect the community. Both factors need to be proven at a hearing by clear and convincing evidence, a much higher standard than probable cause.
So even though Wisconsin prosecutors could seek detention without bail in many serious cases, they find it simpler to request very high bails that most defendants can’t meet.
Brooks was charged soon after the parade attack with five counts of first-degree intentional homicide, one for each person who had been killed, and bail was set at $5 million. Waukesha prosecutors did not seek to hold him without bail.
Since then, Brooks has been charged with another count of first-degree intentional homicide in the death of 8-year-old Jackson Sparks.
COVID and a collapsing court system
Brooks was not the only defendant to receive a $1,000 bail in the cases examined by the Journal Sentinel.
Of the three other cases, one involved a man accused of stealing a parked car and running several red lights during a police chase before crashing into two cars, injuring another driver.
In another, Greenfield police chased a woman accused of shoplifting. The woman sped away, weaving in and out of traffic, with a teenager and baby inside her car, until she finally stopped.
In a third, a man accused of driving drunk was driving the wrong way on several streets in West Allis, almost hitting a police squad car. The officer started following the car and the driver sped away, until an officer was able to use a maneuver with his squad to hit the car, causing the driver to stop.
Like Brooks, all three defendants were out on bail when their cases were charged this year. And like Brooks, all three were able to post the amount to be released from custody.
Cash bail terms are inherently relative to each individual’s situation. A $1,000 cash bail can be out of reach for many defendants. A Federal Reserve study released earlier this year found nearly 40% of Americans would struggle to pay an unexpected $400 expense. Brooks’ bail was posted by a relative.
Another factor in this case and others is an overloaded court system, backed up after more than a year of pandemic restrictions with more cases piling up as police and prosecutors struggle to address a rise in homicides, experts say.
Milwaukee County Chief Judge Mary Triggiano has said the courts are facing a two-year backlog for trials.
The pandemic could have been a factor in Brooks’ 2020 case — the one he was out on bail on when he was charged in early November in the domestic violence case, said LaVigne, the retired UW professor.
“Because of COVID, the system was collapsing. It was just collapsing and they are under, frankly, constitutional pressure to see what they can do about the jail,” she said.
Brooks was charged in July 2020 with two counts of second-degree recklessly endangering safety and one count of possession of a firearm by a felon. He was accused of getting into a fight with a relative and then firing a gun at the relative and a friend, according to court records.
His bail was set at $10,000 and then reduced to $7,500. Prosecutors were prepared to go forward with his jury trial on Feb. 9, according to the district attorney's office's statement.
Brooks was still in custody at that time and had made a speedy trial demand, which defendants have a constitutional right to invoke. Under state law, after a speedy trial demand is entered, a trial date has to be set within 90 days. If the prosecution or the courts cannot meet that timeline, the defendant has to be released on bail.
In Brooks’ case, another jury trial was in progress in the same court and his case was postponed. After hearing arguments from Brooks' attorney, Milwaukee County Circuit Judge David Feiss dropped his bail to $500 and Brooks posted it Feb. 21, online records show.
A plea and sentencing hearing was scheduled in that case for Nov. 11. At that hearing, Brooks' attorney requested another adjournment and the prosecutor did not object.
By that time, Brooks already was in custody for the domestic violence incident.
The politics of bail reform
Chisholm, a Democrat, has sought to limit the use of cash bail for some offenses. In the wake of the Waukesha attack, Republicans who control the state Legislature quickly said they plan to propose measures with minimum bail amounts and strengthening a judge’s ability to consider public safety in setting bail, something a judge already can weigh when imposing bail conditions, but not cash amounts, under state law.
Bail reform supporters say the problems with money bail are well-documented: It keeps many people in jail who are not dangerous, often leading them to lose employment, housing or critical social connections, and often coercing them into plea bargains with harsher consequences than those offered to defendants who are not in custody.
What's more, it has a disparate impact on low-income people and, in particular, people of color. Bail is set when people have not been convicted of any crime and are presumed innocent under the law.
Meanwhile, even very high bails do not prevent someone who is freed on bail from committing another crime. Those operating within the criminal justice system — from judges to prosecutors to defense attorneys to probation agents to police detectives — cannot predict the future. Instead, they try to assess risk.
“If we want a risk-free bail system, absolutely risk-free, guaranteed that people will show and that there will be no new offenses of any kind committed, then we lock everybody up,” said LaVigne, the former director of the Public Defender Project at UW-Madison.
“If you’re charged with a crime, you’re locked up. And the question is for me: Are we prepared to do that?" she said. "I hope not, because none of these people have been convicted.”
The other obstacle in local bail policy discussions is the lack of "good bail data," said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a nonprofit research and policy group based in New York.
The Vera Institute has worked with Chisholm in the past to audit his office for racial disparities in prosecutors’ decision-making, but that research did not include a review of prosecutors’ bail recommendations.
“It’s a terrible, terrible tragedy that now six people are dead and dozens and dozens injured as a result of Mr. Brooks’ actions,” Rahman said.
“The challenge is to take one high-profile, isolated case and try to make bail or pretrial policy out of one incident,” she said. “That doesn’t drive good policy.”
Vanessa Swales, Elaine Rewolinski and Jessica Rodriguez of the Journal Sentinel staff and Kevin Crowe of USA TODAY contributed to this report.
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This article originally appeared on Milwaukee Journal Sentinel: Bail for Waukesha parade suspect Darrell Brooks was lower than average