GOP bills boost cash bail, subvert Democratic changes

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MADISON, Wisconsin — Just two days before driving his SUV through a Christmas parade in suburban Milwaukee, killing six people and injuring more than 60, Darrell Brooks Jr. had posted bail on domestic violence charges.

He had been accused of using his SUV to run over the mother of his son, and a pretrial evaluation found that Brooks was at high risk of a repeat offense. But a court official set that bond at just $1,000 cash at the request of prosecutors, who later called his recommendation a mistake. For the parade murders, Brooks was sentenced to life in prison without the possibility of parole.

Brooks quickly became the symbol of a Republican-backed push 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 offenders to get out of jail on bail.

Republican lawmakers in other states are also scrambling to make it harder for defendants to get out of jail before trial after calling themselves tough on crime in the 2022 midterm elections. Their efforts have spawned a fierce fight. with Democrats for public safety and the rights of those accused of crimes.

Recent Democratic reform measures in states like Illinois and New York have sought to eliminate cash bail and reduce pretrial detention on the premise 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 the exact opposite. His proposals include increasing the number of crimes that do not require bail, requiring more people to post cash bail, and encouraging or requiring judges to consider a defendant’s criminal record when setting bail.

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

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

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

Defendants incarcerated before trial are much more likely to plead guilty to the charges, often taking deals that sentence them to time already served that ends with their detention, researchers from Harvard, Stanford and Princeton found in a study of 2018. The same study found higher unemployment rates for pretrial detainees after they are released. It is not uncommon for defendants who cannot post bail to lose their jobs and even their homes while in jail awaiting trial.

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

Georgia Sen. 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 crimes to a current list of just seven charges that always require cash or property bond. The new offenses include passing a bad check, which can be a misdemeanor or a felony, and misdemeanors such as reckless driving or fighting in public. Robertson argues that victims feel the justice system doesn’t care about them when suspects are released without cash bail.

The measure requires all three offenders to post cash or property bond, as well as those with felony convictions in the past seven years. It also says that no defendant can be released without posting bail unless he appears before a judge.

The moves in Georgia, Wisconsin and elsewhere worry Insha Rahman, vice president of advocacy and partnerships at the Vera Institute for Justice. “When you set money bail for all sorts of crimes and judges can’t release people, you’re absolutely trampling on the presumption of innocence,” she said.

Rahman, a former public defender who helped craft bail laws in New York and other states, said the best research supports termination of cash bail and offers customized release conditions for most defendants. People who pose a “clear and immediate” threat to public safety are the exception, he said, and should be detained pending trial.

“All money bail does is privilege the amount of money someone has in their pocket, not public safety,” Rahman said.

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

“If someone is a repeat offender, I would probably rather have that person locked up than commit another crime,” Wanggaard said.

If ratified by Wisconsin voters on April 4, the amendment would allow bail-setting judges to consider the criminal history of someone charged with a violent crime. Currently, Wisconsin judges can only set a bond as a means of ensuring someone returns to court. The bill would also require judges to publicly state their reasoning for the bail amounts they set.

Opponents criticize the expanded list of crimes under the amendment, which includes watching a dogfight, violating a court order prohibiting contacting criminal gang members, and negligently leaving a firearm where a child has access to it, as too broad. .

Ohio voters approved 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 in considering public safety and criminal records.

In New York, bail has been a polarizing issue since the Democratic majority passed a 2019 law that abolished pretrial incarceration for most nonviolent crimes. Many prosecutors, police officers, Republicans and even some moderate Democrats argued that the changes threatened public safety.

Republican candidates running against crime saw big gains in suburban New York City in 2022. And Democratic Gov. Kathy Hochul, under pressure from voters, has said she wants to overhaul bail laws this year to give judges more leeway in setting bail.

Democratic changes to bail in Illinois ran into obstacles when the state Supreme Court stopped a new law that would have eliminated cash bail effective January 1. Prosecutors and sheriffs from 64 counties filed lawsuits challenging the measure. The Supreme Court heard arguments on the lawsuit last week.

Baughman, the Utah law professor, said the Illinois law would likely 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 the constitutional right of release before trial,” he said. “Poor defendants and people of color bear the brunt 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 staff member of the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on covert issues. Follow Harm on Twitter.

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