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Wisconsin Christmas parade case raises questions around bail

Detractors to bail reform and early release are using the case of Darrell Brooks as a warning. Brooks, accused of driving into a Wisconsin Christmas parade, received low bail for a previous charge.

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The death toll in Waukesha, Wis., has risen to six following the mayhem caused by an SUV that plowed through a pre-Christmas parade on Sunday. The accused driver is Darrell Brooks, a 39-year-old out on bail for a previous violent incident. As NPR's Martin Kaste reports, Brooks has become the flashpoint for the national debate over bail.

MARTIN KASTE, BYLINE: Darrell Brooks had allegedly run somebody else over earlier this month. He was charged in Milwaukee County, then let out on supervised release by posting $1,000 bail. It's that dollar amount that has conservative voices howling. The New York Post ran an editorial calling the parade tragedy the, quote, "deadly result of progressive arrogance on bail reform." But the factors leading to his release may have been more complicated than that.

ERIKA BIERMA: I mean, when you look at everything that's happened with COVID, Milwaukee County, Waukesha County, Dane County, some of the more populated counties, were really backlogged.

KASTE: Erika Bierma is an experienced criminal defense attorney in Wisconsin.

BIERMA: A lot of courts in the populated counties may have reevaluated bond decisions in a way that they wouldn't have done in pre-COVID.

KASTE: Still, it is true that the district attorney of Milwaukee County, John Chisholm, believes in reducing pretrial detention. It's not known if that's what led to his prosecutor asking for only $1,000 for Brooks, a bail amount that Chisholm on Monday called inappropriately low. Chisholm's critics call him part of a new generation of reformist prosecutors. And they point out that he celebrated the 2019 election of Chesa Boudin DA of San Francisco. That's a reformist who now faces a recall election. All of this is putting those prosecutors' supporters on the defensive.

WHITNEY TYMUS: Of course, this is a terrible, terrible tragedy.

KASTE: Whitney Tymas runs Black Women Forward, a group that just commissioned a report praising 19 reformist prosecutors around the country, including Chisholm, for trying to reduce the number of people held in jail and prisons.

TYMUS: There will always be people who are out on bail who go out to commit awful crimes. But having said that, we can't continue with a system that's unsustainable and unjust in its overreliance on incarceration.

KASTE: The main criticism of bail is that it discriminates against the poor. If you don't have money, you wait for trial in jail. Columbia Law School's Kellen Funk studies the wide variety of pretrial release systems in the U.S. And he says it tells you something about those systems when a prosecutor laments that bail was set too low.

KELLEN FUNK: That can be a euphemism for just saying, I wish bail had been set beyond the defendant's means, so that they remain detained pending trial, full stop - which is really to say, I wish there had been an illegal order denying pretrial release outright.

KASTE: Even some of the critics of the reformist prosecutors say they do agree that cash bail should not be used to trap poor people behind bars before trial. Rafael Mangual researches policing and public policy at the Manhattan Institute. He says risk assessment is what matters, and the defendants who pose the biggest risk should stay in jail no matter how much money they have. And he says COVID backlogs shouldn't be an excuse for letting them out, either.

RAFAEL MANGUAL: It should never be the case that the system is incapable of meeting out justice in a timely fashion. And what that should be for us is a warning sign that we need to, you know, readjust our investments in our criminal justice systems.

KASTE: In Waukesha, Brooks is back in jail. In theory, he could get out again on bond. But this time, the cash bail has been set at $5 million. And under Wisconsin's system, he would have to post the entire amount. Martin Kaste, NPR News.

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