Dems Should Support Bail Reform

Wisconsin’s legislative Republicans are passing a series of bills aimed at putting Democratic Gov. Tony Evers on record against them and, they hope, on the wrong side of hot-button issues.

Since he took over as governor, Evers has vetoed 66 bills, but the pace has picked up recently. Evers has vetoed measures sent to him by Republicans on a host of red meat issues, most notably voting restrictions and how issues of race are taught in the public schools. Republicans never expected Evers to sign those bills; they’re just using them to write scripts for attack ads in the fall.

But there’s one Republican bill that Evers can’t veto. In fact, he should actually support it. It’s a constitutional amendment that would require judges, when setting bail, to take into account the criminal history of the defendant, the seriousness of the charges and the likelihood that the alleged offender will commit another crime or intimidate witnesses. This would apply only to charges of violent crimes. Under current law, judges can take into account only the chances that the defendant will show up at court dates, though they can put on other restrictions, such as not having contact with witnesses or alleged victims.

Evers can’t veto this measure because, as a state constitutional amendment, it must be approved by two successive legislatures and then by the voters, but the governor does not have a say in that process. So, Evers could duck the issue to some extent, though he would certainly be asked about it on the campaign trail.

But he shouldn’t want to duck it. This is an opportunity. He should actively support it. Moreover, legislative Democrats should vote for it as well, though it will pass without them anyway.

Republicans are giving Evers a chance to look tough on crime. He should take it.

Democrats should support bail reform for two reasons: it’s the right thing to do and it’s good politics.

It’s the right thing to do because too many bad guys are getting out of jail with a free card. The most high profile case of that was the tragic killings at the Waukesha Christmas parade last December. Darrell Brooks was out on $1,000 bail when he ran his vehicle into parade goers, killing six. He now faces 77 criminal charges and his new bail has been set at $5 million, a little too late.

And in Madison, all too believably, radical activist groups are actually posting bail for violent offenders. This constitutional amendment would allow judges to set bail high enough to put that ridiculous practice out of reach to them.

All of this is not to say that liberal reformers, who want to go the other way on this issue, don’t have some good arguments on their side. For non-violent offenders there are good reasons to allow their release on low bail or even a signature bond. That happens a lot in Dane County, but perhaps there is some change needed in other parts of the state. In any event, liberal reform on bail is a dead issue for now in the wake of Waukesha. They will have to wait at least a couple of years for this to work itself out, but this constitutional amendment might actually help their cause. If the public is satisfied that violent offenders can remain locked up, they might be more willing to consider making it easier for non-threatening defendants to be freed while awaiting trial or the dispensation of their cases.

But on the politics of this, Democrats need to take the opportunity Republicans are giving them. Evers’ vetoes of the voting restriction bills won’t hurt him at all. Those bills only play to the hard-right Republican base anyway. The Critical Race Theory bills are more problematic for Evers. Virginia Gov. Glenn Youngkin won in part on that issue. We’ll see if it has the same resonance in Wisconsin. But crime is a real problem for Democrats. They are viewed — not without reason — as being weak on that issue. This bail reform issue gives them a chance to address that weak spot in their party’s image.

This will be an overwhelmingly popular amendment. It will pass the Legislature easily and then be approved by a big margin in the popular vote. The Democrats would be crazy to get on the wrong side of this.

And on a related matter… I keep getting emails from the Evers campaign hammering away at the voting rights issue. I assume he’s got polling that shows that this lights a fire under Democratic donors. But he can’t do much with this issue in the general election. He has to talk about issues that are more salient to average voters — taxes, education, the economy and crime.

Welcome to the 362nd day of consecutive posts here at YSDA. Thanks for reading!

Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

5 thoughts on “Dems Should Support Bail Reform

  1. Considering the severity of the chargers in allowing bail seems like circular reasoning. People are supposed to be innocent until proven guilty. Taking into account the severity of the charges presupposes guilt.

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    1. That’s a good argument, Charles. I considered it. But other states allow this and the Supreme Court has not struck it down. So, as a matter of constitutional rights, it does not seem to have run afoul.

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    2. I also share this concern. One way I hope the we can address this issue (in part) is with court reform. It takes way to long to go to trial and innocent people get their lives ruined by that long wait. We might need to invest more in our court system to get it running better.

      We spend so much time talking about criminal justice reform but only look at the police. We need to get the focus on our inefficient and ineffectual court and corrections (I hate to even use that term) systems, they have had a free pass for far too long and carry WAY more responsibility for our problems than front line police officers. We don’t even have adequate data systems to begin to analyze their performance, and I believe that’s on purpose. Wouldn’t it be great if we could see which judges and which prisons have the most recidivism?

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  2. Bail reform is an important public policy area to get right. First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release, the problem is that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored.
    The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant who is arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations, and to court commissioners and judges, who make the ultimate bail decisions. The risk score takes into account a person’s prior record of convictions, the type of offense with which they’re charged, their history of appearance or non-appearance, their history of violence, their age, and their record of prior incarceration. The individual in the Waukesha Christmas parade case had an elevated score on the PSA, a score that resulted from a number of factors, including his history of non-appearance and the fact that he was out on bail already when he was arrested on new charges. He should have had high bail set. In short, the risk tool worked, but it wasn’t followed. But just because this defendant should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious (even violent) offense can’t be safely released if other risk factors are not present. In the last couple decades, we’ve increasingly come to rely on evidence, not emotion, in making decisions in the criminal justice system. This should be applauded, not criticized, because it results in rational decisions rather than ones driven by prejudice and fear. It’s also important to remember that unnecessary pretrial detention has societal costs and creates a two-tiered justice system – one for the rich and one for the poor. After all, the minimum bail outlined in some legislative proposals would have a very different impact on a poor person working part-time at minimum wage than a rich person with money easily available. It’s also important to note that studies have shown strong correlations between the length of time a low or moderate-risk person spends in pretrial detention and the likelihood that they would be re-arrested later in life. In other words, detaining low-risk individuals has societal costs – it can make us less safe. The constitutional amendment should be debated, but the debate should focus on what the research and evidence tell us, which is that there is no “one size fits all” solution to the problem of public safety and pretrial release. Saying “lock up all ‘violent’ offenders” pretrial is not the right answer. It ignores the harm that can be caused by pretrial detention, ignores the due process rights of accused persons, and, most importantly, it ignores the evidence that some of those accused even of violent offenses do not represent an on-going threat to public safety if other risk factors are not present.

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