An SUV plowed into a Christmas parade Sunday evening in Waukesha, Wisconsin, a horrible incident that has left five dead and at least 40 injured.
The details of what exactly happened remain sketchy. But a person of interest, 39-year-old Darrell Edward Brooks, has been publicly identified, and unidentified law enforcement sources have told The Washington Post that Brooks was racing away from the scene of a knife fight. Brooks has a lengthy criminal record that includes such violent charges as battery and domestic abuse. And he was out on a surprising low bail amount—$1,000—after already being charged with jumping bail for some of those past charges.
It has been just three days since the high-profile murder trial of Kyle Rittenhouse, a case in which a false narrative was fueled first by early inaccurate reports of what had happened, and then by ideologically driven arguments designed to encourage support for tighter gun controls and new domestic terrorism laws. The Rittenhouse case became a polarizing ideological sorting test, with conservatives tending to support the defendant and liberals tending to take the other side.
Given what just happened with Rittenhouse, one might expect conservatives of all people to be reluctant to rush to judgment based on so little information. But as with Rittenhouse, there's an ideological urge to attack a policy—in this case bail reform—to explain what happened Sunday.
Guy Benson of Fox News contributor and Town Hall has posted several tweets and clips of himself taking note of how the press bungled its coverage of Rittenhouse's charges and trial. And in the middle of all that, he posted this:
Thinking about this today. pic.twitter.com/4OYtpyJL17
— Guy Benson (@guypbenson) November 22, 2021
I'm picking on Benson here because I usually find him a good-faith conservative. But the movement to reduce the dependency on cash bail or eliminate it entirely is based on the idea of returning bail to its true purpose: to make sure that people who are charged with crimes behave appropriately while they're free and return to court to face their charges. Pretrial detention should be reserved for those who show themselves to be too dangerous to be freed. Instead we have a system where who goes free often depends not on dangerousness or flight risk but who can pay the money. The end result: Millions of people who have not been convicted of crimes end up serving the equivalent of jail terms because they cannot afford the cost to get out.
The Fifth Amendment requires due process before a person can be punished for a crime, but cash bail often turns the system on its head. People stuck in pretrial detention often end up pleading guilty or accepting bad plea deals because it's the only way to get released.
The goal of bail reform is not to free people like Brooks. The goal is to make sure the court system focuses on people like Brooks.
A few hours after Benson's tweet, the district attorney's office for Milwaukee County put out a lengthy statement explaining what happened with Brooks. He originally faced much higher bail ($7,500) for charges of reckless endangerment and for being a felon in possession of a firearm. But due to court conflicts, the court wasn't able to meet Brooks' demands for a speedy trial. His bail was knocked down to $500, which he paid in February and was released. He was charged in November with skipping out on this bail and was arrested again. Then, for reasons that are not yet clear, he was let out with a new bail of $1,000.
The District Attorney's office says that the bail recommendation in this case was "inappropriately low" and "not consistent with the approach of the Milwaukee County District Attorney's Office toward matters involving violent crime, nor was it consistent with the risk assessment of the defendant prior to setting of bail." The office will investigate how Brooks got out with such small bail.
All of which is to say: Because Brooks was very obviously somebody who skipped out on bail once, the risk assessment the county put together on Brooks (or was supposed to put together on Brooks) should have reflected this possibility.
It may turn out later that the D.A's office is attempting to cover its ass. Perhaps there are many other cases like the Brooks case. But Milwaukee doesn't exactly have a reputation for being overly kind to people suspected of crimes. In 2016, its county jail allowed a man in solitary confinement to dehydrate to death because he had no access to water in his cell. Milwaukee County is the place that gave us Sheriff David Clarke, who supports an uber-harsh justice system (except for Donald Trump's lackeys, of course).
Wisconsin's bail regulations are very clear: Judges are authorized to set bail to a level that the judge believes will ensure the defendant will return to court, and they are authorized to set any number of non-financial release conditions as well. The state's bail statute is also clear that whether the defendant is currently already out on bail is something to be considered.
Whatever comes out of this horrible incident, tough-on-crime conservatives need to resist the urge to attack bail the way the left used Rittenhouse to attack gun rights. We are protected by both the Second Amendment and Fifth Amendment. You know whose bail was set too high? Rittenhouse's! That he needed the assistance of a bunch of celebrity conservatives to raise $2 million in order to be free to prepare his case is, in fact, an example of a broken system.
We can protect public safety without using bail as a mechanism to punish people before ever convicting them. For every case like Brooks, there are hundreds, even thousands, of people stuck in pretrial detention who are no threat to anybody but can't afford the cost of their freedom.