Did domestic violence past, low cash bail lead to tragedy in Waukesha?

November 23, 2021 7:22 PM

Naomi Kowles,

Posted: November 23, 2021 7:22 PM

Updated: November 23, 2021 7:47 PM

by Naomi Kowles

MADISON, Wis. — Tragedy at Waukesha’s Christmas parade has put cash bail conditions in the spotlight in Wisconsin, after suspect Darrell Brooks, 39, is accused of killing six and injuring dozens more after being released days earlier on an “inappropriately low” $1,000 bail.

Brooks’ criminal record spans three states and more than 20 years, with violent crimes committed largely in Wisconsin but also in Nevada and Georgia. Most recently, open criminal charges include domestic violence — he’s accused of running over a woman with his car after following her after a fight. He was released in that case on the $1,000 bail just five days before Sunday’s tragedy.

Police also believe he had just left another domestic violence incident that they didn’t have time to investigate before he’s accused of driving his red SUV into the Waukesha Christmas parade, killing six and injuring a total of 62, according to prosecutors in court on Tuesday. He’s now charged with five counts of first-degree intentional homicide — with more charges, including a sixth homicide charge, likely to follow.

The Milwaukee County District Attorney’s office is now conducting an internal investigation into how such a low bail was ultimately agreed to after an initial request of $10,000 cash bail was lowered to $7,500 in the same case.

The news has outraged many across Wisconsin, with Milwaukee County supervisors Shawn Rolland and Patti Longdon calling for the DA’s internal review results to be released to a subcommittee of the county board.

“Darrell Brooks should not have been out on bail,” Rolland tweeted. “The people need to understand why that happened. Trying to get that done.”

Pretrial release in Wisconsin

On Tuesday, Rep. Cindi Duchow (R-Delafield) announced her third proposal to amend Wisconsin’s constitution to permit judges or court commissioners to consider public danger and other factors when weighing pretrial release conditions. Currently, they can only consider a suspect’s flight risk, a suspect’s likelihood to return to court.

“Wisconsin continues to see examples of people with extensive criminal histories committing crimes while out on bail,” Rep. Duchow said in a press release. “Most recently was the tragic and horrific attack on the Waukesha Christmas Parade by an individual with a long history of violent crimes.”

But some criminal law experts say pushes for pretrial release policy changes don’t address the root of the problem and that cash bail amounts shouldn’t be used to effectively measure someone’s danger to the community.

“If you think someone’s a danger to the community, then using a certain amount of cash bail on the theory that you will keep them incarcerated doesn’t make a lot of sense, because people can simply buy their way out of jail,” University of Wisconsin Law School Associate Professor John Gross said. “If someone is genuinely dangerous and prosecutors think they are an ongoing threat to the community or might flee the jurisdiction, then we really should be having a conversation about pre-trial detention that doesn’t involve arbitrary amounts of cash bail.”

Under current law, the Wisconsin Constitution provides that all persons are eligible for release prior to conviction to assure the person’s appearance in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses. Wisconsin state statute allows pretrial release to be denied for the most serious crimes, first-degree intentional homicide and sexual assault of a child; still, high cash bonds like Tuesday’s $5 million for Brooks are generally used for the most egregious crimes.

A judge or court commissioner can only consider a suspect’s flight risk when deciding what bail conditions to require, not public danger or the seriousness of charges, although prosecutors often use those factors when arguing for higher bail limits.

Gross said basing policy proposals on a highly unusual and impossible-to-predict incident doesn’t get at the heart of the issue or address how cash bail doesn’t fundamentally solve the problem of releasing suspects who pose a dangerous threat to their communities.

“The Supreme Court has said that if you’re keeping someone in jail solely because they’re poor, because they can’t pay the bail or they can’t pay the fine, that that’s unconstitutional,” he said, citing Griffin v. Illinois and Bearden v. Georgia. “That’s wealth-based discrimination.”

Domestic violence in criminal justice system

Domestic violence victims often feel failed by the criminal justice system, experts say, and Brooks’ release despite accusations of domestic violence against a woman is part of that conversation.

“This is how broken the system is,” Gross said. “He is a serial abuser of women who commits domestic violence on a regular basis. We know that batterers who commit domestic violence continue to do so and often escalate the violence and often kill the person that they’ve been abusing. So the system was comfortable releasing him knowing all that, and now when he commits this inexplicably horrific act of violence — not against the women he’s been battering for years, but against the public, now there’s a call to reevaluate the bail system?”

Shannon Barry, executive director of the Domestic Abuse Intervention Services in Madison, said that while people who abuse their loved ones at home are not always a public threat, people who are a danger to the public are commonly also abusers in private.

That’s why she believes any policy considerations need to begin with not just Brooks’ most recent accusations, but also his troubled past.

“What can we do collectively to interrupt that cycle?” Barry said of the pattern of domestic violence escalating in severity. “Whether it’s in that family or that individual’s intimate partner relationship before it gets worse… or interrupt it before it goes to this broader level of community-based violence that impacts all of us?”

Are you a victim of domestic violence? Reach out to the DAIS hotline at 608-251-4445 or 800-747-4045 for services and support.