Last week, Darrell Brooks allegedly drove his SUV through a holiday parade in Waukesha, Wisconsin, killing six people and injuring 62 others. Brooks never should have been free in the first place.
Brooks had been released from jail just two days prior on a mere $1,000 bail bond. He was given this paltry bail despite facing charges of domestic assault, obstructing a police officer, and bail-jumping. Self-appointed pundits immediately pounced upon this. This, they said, is what happens when bail is reformed, and the way to fix it is to require larger bonds for all accused criminals. Anything less, they asserted, is just a different version of the liberal “defund the police" and "abolish prisons” movement.
This argument is a straw man.
It is perfectly consistent to support bail reform in general and to acknowledge that this particular defendant posed a great enough risk that he should have been incarcerated before his trial.
Not every criminal case requires a bond to keep the public safe. Every day, thousands of people are charged with low-level crimes. Shoplifters and first-time drunk drivers must be held accountable for their crimes, but their freedom pending trial is not necessarily a danger to the public. Most low-level offenders are unlikely to flee. Keeping them locked up does little to make neighborhoods safer.
On the other hand, the cost of jailing them is significant, not just for the taxpayers who pay for expensive jail cells, but for families and employers who lose loved ones and employees.
The key to the Waukesha case is to use some common sense instead of jumping from one extreme to another. We can distinguish between criminal suspects who are genuinely dangerous if free and those who are not. Indeed, that is precisely what the Constitution requires, at least in theory.
Judges have an obligation to protect the public from those who have been charged with a crime. Our Constitution also guarantees a speedy trial (the Sixth Amendment), prohibits excessive bail (the Eighth Amendment), and requires that the government not deprive anyone of life, liberty, or property without due process (the 14th Amendment). Finding this balance is at the heart of the conservative effort to fix the bail system.
Some people are so dangerous that no bond will keep the public safe. Judges must have the authority to preventively detain them. At the same time, many of those charged with minor, nonviolent crimes are neither dangerous nor flight risks. Where things get complicated is in between these two extremes.
In cases involving serious charges, judges and magistrates must have the best tools possible to make informed decisions about whether a defendant is a threat to safety or a flight risk. Many conservatives have pushed for the use of risk-assessment tools — algorithms that set criteria to measure quantitatively both the public safety threat and flight risk of a given defendant. But it is difficult to set policy when judges fail to use the tools they have at their disposal.
Brooks’s record positively screamed out that he was both a threat and at risk of failing to appear for court. His recent, allegedly violent past — including assault with a motor vehicle and firearm charges, plus multiple cases of bail-jumping — earned Brooks a very high score on the risk assessment, flagging for a judge a potential need for preventative detention.
Yet the error in Waukesha cannot be laid at the feet of those seeking to move away from a one-size-fits-all justice system. Wisconsin did not have New York-style bail system in place.
Those employing straw man arguments against bail reform fail to acknowledge that different people charged with different crimes pose different risks. It is easier to complain on Facebook about a system that is broken than to make actual improvements. These same bloviators would criticize the use of risk assessments and instead rely on an overly broad and arbitrary approach to bail that keeps nearly everyone locked up for months before a jury has returned a verdict in their case.
Criminal justice policy is complicated and messy. Every decision to lock someone up before trial has consequences, not just for the defendant, but for his employer or business, for his family, and for the community. Risk assessments and other such tools can help reduce unnecessary pretrial incarceration while ensuring that the most dangerous suspects remain incapable of doing more harm.
David H. Safavian is general counsel for the American Conservative Union.