Milwaukee National Lawyers Guild: Changes to Bail System do not Prevent Crime

The NLG Milwaukee Chapter continues to express our heartfelt sympathy to those who were harmed and lost loved ones during the Waukesha Christmas Parade. We hope that Waukesha’s community can find comfort in the days that come. Since the violent event and the arrest of the suspect, we recognize our collective need to search for meaning and identify any means by which so many deaths and injuries could have been prevented. This has included journalistic rehashing of the suspect’s previous contact with the criminal justice system, as well as commentary from Milwaukee County District Attorney John Chisholm. 1 The narrative that is being suggested is that the accused, Darrell Brooks, previously had bail that was set too low, and that a higher cash bail could have prevented this particular event. It is tempting to follow this train of logic, but it is also very dangerous as we seek to maintain our collective constitutionally enshrined rights and freedoms, and strive for true safety and security. The NLG Milwaukee Chapter wants to be clear: changes to the bail system do not prevent crime. More comprehensive mental health services, social services, employment opportunities, educational opportunities, and stable housing are the only proven routes to a safer and more secure society. It is easy for politicians to point to policies around cash bail as quick solutions, but these suggestions are dishonest over-simplifications that make it seem like they are doing something about crime when really, they are just putting on a show without actually investing in measures that make our communities safer. In a recent statement, State Senator Van Wanggaard (R) noted: “In the last 30 years, the law hasn’t been a problem and there have been no issues. Rushing to change any law based on a single event or incident is never a good idea.” While not about the suggested changes to the Wisconsin Constitution’s bail provisions, we concur with this opinion and the underlying sentiment. We also want to underline how disrespectful it would be to those who have suffered in Waukesha, as a change to the bail system we have in place will not lead to the robust safety and security we seek. It also bears recognizing that cash bail is a notoriously unequal system that impacts Black, brown and poor citizens much more heavily than others. The purpose of cash bail is not to 1 District Attorney Chisholm has stated that the bail requested was inappropriate and that the charging ADA, Michelle Grasso, made an error when recommending $1,000. However, the Pretrial Risk Assessment recommends “Financial” and a supervision level, not a specific dollar amount. Both the ADA and the Court followed the recommendations with level 5 monitoring and a financial component. prevent future crimes, but to ensure that individuals accused of crimes make all of their court appearances. If Milwaukee County is committed to our collective well-being, it can allocate resources that will support those comprehensive services that save lives. The county can also address our beleaguered criminal justice system, in which attorneys have too many cases and rush as their clients sit behind bars waiting for trials. The Constitution guarantees a right to a speedy trial to all people who are accused of crimes, but this right has severely eroded during the COVID-19 pandemic – particularly in Milwaukee County, where there are still hundreds of people sitting in custody waiting for their trial date. Many of those individuals have sat in custody much longer than §971.10 allows. Solutions that fall short of addressing these areas concretely would only be political theater to distract us from what it takes to achieve true safety and security.