Waukesha Suspect’s Previous Release Agitates Efforts to Overhaul Bail
In early November, prosecutors in the Milwaukee County District Attorney’s Office made a fast, fateful decision, asking that bond for a 39-year-old repeat offender accused of brutalizing his girlfriend, then running over her with an S.U.V., be set at only $1,000.
That call, one of many made in the city’s bustling criminal court that day, initiated a succession of events that ended, according to the police, with that man, Darrell E. Brooks Jr., ramming his maroon Ford Escape through the barricades of a Christmas parade in nearby Waukesha, killing six people and injuring dozens more.
The bail decision has brought criticism raining down on Milwaukee County’s district attorney, John T. Chisholm, a Democrat who has tried to reduce high rates of incarceration and racial disparities in the justice system. Longtime critics, led by Wisconsin’s previous governor, Scott Walker, blamed Mr. Brooks’s release on Mr. Chisholm’s “radical” liberal ideology.
It appears, though, that the controversial release may have been not a policy decision, but the result of happenstance and other factors — an inexperienced junior prosecutor and a rushed supervisor up against a huge backlog of cases that piled up during the coronavirus pandemic, according to court documents and interviews with judges, prosecutors, local officials and defense lawyers.
The bond was ultimately set by a court officer. Several people familiar with Milwaukee’s criminal courts said the amount was uncharacteristically low given the defendant’s background and charges, and it prompted an internal investigation within the district attorney’s office.
The backlash raised fears that the fatal episode would set back efforts across the country geared at reducing the incarceration of poor defendants awaiting trial because they cannot afford bail.
“This was not the product of criminal justice reform or bail reform efforts, which have rightfully questioned how we use pretrial and post-conviction incarceration,” said Craig Mastantuono, a Milwaukee criminal defense lawyer who has worked on such efforts for 15 years.
The decision to allow Mr. Brooks to be released on $1,000 bond was “a mistake,” he said, that occurred “despite, not because of, the current bail and risk assessment system in place here.”
In a statement released after the events in Waukesha, Mr. Chisholm said the prosecutor’s bail recommendation had been “inappropriately low in light of the nature of the recent charges” and not “consistent with the risk assessment of the defendant.”
Mr. Chisholm and his team also pointed out that Mr. Brooks had been given a $10,000 bond in a previous case, though that bail had been lowered by the courts after his trial was delayed.
The case has, nonetheless, reignited a long-running debate over criminal justice in a deeply polarized state that, just days before, had seen Kyle Rittenhouse acquitted of homicide after killing two men during the unrest in nearby Kenosha in 2020.
Mr. Walker, a former Republican presidential candidate who curtailed parole as governor, suggested that the release of Mr. Brooks was related to the “defund the police” movement and said that Republicans should emphasize the issue in campaigns.
“We saw last year during the pandemic when you let violent criminals back out on the street, they commit crimes,” he said in a television interview on Tuesday. That’s what criminals do.”
David A. Clarke Jr., a former Milwaukee County sheriff who was previously cited for maltreating prisoners, accused Mr. Chisholm of “enabling career violent offenders to escape prison.”
Mr. Chisholm and a top deputy who handles press inquiries did not respond to requests for comment on the case.
Critics of a system that relies on high bonds to keep people detained say that the ability to pay is not a gauge of dangerousness. For example, a drug kingpin who has killed repeatedly might be able to pay a $1 million bond and go free, while a shoplifter might not be able to pay $250.
Wisconsin is one of a handful of states that has banned commercial bail bonds, where defendants pay a percentage to a bond company to bail them out. Instead, defendants are required to pay the full amount of their bonds, although many counties make liberal use of signature bonds, where no money is required up front but defendants are liable under a financial judgment if they fail to appear.
In theory, prosecutors in Wisconsin can ask for a preventive detention hearing to make the case that a defendant should be held without bail. But in practice they request high bond amounts instead, people familiar with the system said; Mr. Brooks is being held on $5 million cash bail after being charged in the fatal parade attack.
People involved in the state’s criminal justice system said the bail decision in Mr. Brooks’s earlier case was less about ideology than exigency, and was almost certainly related to the massive backload of cases in the Milwaukee court system, made up of cases delayed by the pandemic plus a new wave of trials resulting from a recent spike in violent crime. More than 1,000 felony cases, and close to twice that many misdemeanors, are currently in the queue, officials said, increasing incentives to reduce the prison population by lowering bail.
“We are now facing, in Milwaukee County, a backlog to the tune of two years when it comes to trials,” said Mary E. Triggiano, chief judge of the state’s First Judicial District, which oversees courts in the city and surrounding area.
“The whole ecosystem is interconnected, so everything — the courts, jails, bail — is affected by the crisis,” she added. “We are struggling with this every single day.”
It is clear that Mr. Brooks — who had a criminal history of violence, domestic abuse, sexual crime, drug offenses and bail jumping dating to 1999 — should never have been eligible for such a low bail regardless of the state of the courts, lawyers who work in the system said.
Each defendant is screened by a pretrial risk assessment that uses nine data points, including age and prior convictions, to rate the defendant’s risk of failing to appear in court and of committing a new crime. Judges or court commissioners receive the risk score, along with recommendations by the defense and the prosecution, before setting the amount of bond and the release conditions, which can range from very little supervision for low-risk defendants to weekly check-ins and GPS monitoring.
The risk assessment is not a matter of public record, but someone with Mr. Brooks’s history would almost certainly have been rated a six out of six and flagged as a high risk for violence, several lawyers said.
Mr. Brooks was ordered to be under “Level 5” supervision, the most restrictive level possible, according to documents prepared for his Nov. 5 bail hearing. He was ordered to keep away from two female witnesses in the case, and prohibited from carrying a firearm, but he was not required to wear a GPS unit to track his location. The $1,000 bond was posted by a relative.
The prosecutor assigned to Mr. Brooks’s case, Michelle A. Grasso, a 2019 graduate of Marquette University Law School, and Carole Manchester, a veteran lawyer who represented the office in the bail hearing, did not respond to requests for comment.
The bail system in Milwaukee, with its pretrial protocols, is the result of a longstanding collaboration among the county judges, Mr. Chisholm’s office and the local public defender. In 2012, the courts introduced risk assessments to reduce unnecessary restrictions on low-level defenders and more accurately identify those who warranted closer supervision.
“With a tragedy like this, a true tragedy, we do not have any way of predicting when this is likely to happen or not likely to happen,” said Meghan Guevara, an executive partner at the Pretrial Justice Institute. “If the judges were not having to churn through so many cases, they may have time to focus on a case like this,” she added.
In a 2007 interview with the Milwaukee Journal-Sentinel, Mr. Chisholm acknowledged the system could not perfectly predict who might commit violence. “Is there going to be an individual I divert, or I put into a treatment program, who’s going to go out and kill somebody?” he said. “You bet.” He was discussing alternatives to incarceration, not release on bail pending trial. Such programs have often been shown to reduce overall recidivism.
Milwaukee, despite Mr. Chisholm’s liberal reputation, is not especially lenient when it comes to bond practices. From 2011 to 2015, the median bail in Milwaukee County was $750 — higher than in most other Wisconsin counties — while the average was $6,279 and the maximum was $1 million, according to the most recent data on the website Measures for Justice.
Mr. Chisholm has long been an advocate for reducing incarceration and using data to rein in racial disparities in the justice system. In 2017 he, along with numerous other prosecutors across the country, signed a legal brief that said defendants in misdemeanor cases should not be required to pay to avoid jail before trial. Studies show that holding low-risk defendants on low bail severely disrupts their lives and even increases their risk of committing new crimes.
But Mr. Chisholm has not shied away from requesting substantial bond amounts in more serious cases, according to news reports.
In 2007, his first year in office, he began an internal investigation when one of his prosecutors requested a $100,000 bond instead of $1 million. After video evidence emerged in a sexual assault case in 2013, his office requested raising the suspect’s bail from $10,000 to $200,000; the judge agreed to only $35,000. In 2018, the bond for a man accused of killing a police officer was raised to $1.5 million.
Mr. Chisholm has also been criticized for lenience. In one case, a 20-year-old man violated the terms of his $1,000 signature bond and was released for $100. He went on to commit a robbery in which the police fatally shot his accomplice. Mr. Chisholm’s office successfully prosecuted the man for the accomplice’s death.
But the Waukesha tragedy — with the sickening details of children and retirees being run down — has the potential to change the debate over criminal justice to an extent that none of Mr. Chisholm’s earlier actions have.
“This could be a huge blow to our work in making the system more equitable,” said David Bowen, a Wisconsin state representative whose district includes several predominantly Black neighborhoods in Milwaukee. “The narrative gaining traction in white suburban communities now is all about being tough on crime.”