Republican bills urge bail, undermine democratic changes in Georgia and across the US

Just two days before he drove his SUV through a Christmas parade in suburban Milwaukee, killing six people and injuring more than 60, Darrell Brooks Jr. posted bail on domestic violence charges.

He was accused of running over his child’s mother with his SUV, and a pre-trial investigation found Brooks was at high risk of recidivism. But a court official set bail at just $1,000 in cash at the request of prosecutors, who later called their recommendation a mistake. Brooks was sentenced to life in prison without possibility of parole for the parade killings.

Brooks quickly became the face of a Republican-backed push to introduce stricter bail codes. The Republican-controlled Wisconsin legislature is asking voters to ratify a constitutional amendment that would make it harder for violent criminals to get out of prison on bail.

GOP lawmakers in Georgia and other states are also scrambling to make it harder for defendants to get out of jail before their trial after branding themselves as hard on crime in the 2022 midterm elections. Her efforts have led to a bitter battle with Democrats over public safety and criminal rights.

Recent reform measures by Democrats in states like Illinois and New York aim to eliminate bail and shorten pre-trial detention on the assumption that they do more harm than good, particularly to marginalized groups.

But Republican lawmakers in at least 14 states have introduced about 20 bills so far this year that aim to do just the opposite. Her proposals include increasing the number of crimes that do not allow bail, requiring more people to pay bail in cash, and encouraging or requiring judges to consider a defendant’s criminal record when setting bail take into account.

Criminal justice experts and advocacy groups warn that the measures Republicans are backing are not backed by research and could exacerbate crime rates and inequality between rich and poor. Bail is intended to ensure a defendant’s return to court and does not constitute a punishment as the defendant has not yet been convicted.

“Cash bail is not a benefit to the defendants or to public safety,” said Shima Baradaran Baughman, a University of Utah law professor who studies bail.

“When people are detained for even a few days prior to trial, they are much more likely to reoffend later,” Baughman said. “In other words, it is much safer for the public to release most people before trial than to detain them.”

Researchers from Harvard, Stanford and Princeton found in a 2018 study that defendants who are detained before trial are more likely to plead guilty – and often accept agreements that sentence them to a previously served sentence that matches theirs detention ended. The same study found higher unemployment rates for pre-trial detainees after their release. It is not uncommon for defendants who are unable to post bail to lose their jobs and even their homes while awaiting trial in prison.

While Republicans who are seeking to expand the use of bail recognize that people are legally presumed innocent before trial, some say they believe most defendants are ultimately guilty and that society would be safer if more were jailed.

Georgia Senator Randy Robertson, longtime deputy sheriff and former state president of the Fraternal Order of Police, said he was “extremely confident” most of those arrested were guilty.

In February, the Republican-led Georgia Senate passed a Robertson proposal that would add 53 felonies to a current list of just seven counts, all of which require cash or bail. The new offenses include passing a bad check, which may constitute a misdemeanor or a felony, as well as such misdemeanors as reckless driving or brawling in public. Robertson argues that when suspects are released without bail, victims feel the justice system doesn’t care about them.

The measure requires bail in cash or in kind from triple offenders and people convicted of a crime in the past seven years. It also states that a defendant can only be released if he appears before a judge without posting bail.

Actions in Georgia, Wisconsin and elsewhere worry Insha Rahman, vice president for advocacy and partnerships at the Vera Institute for Justice. “When you set bail for all kinds of crimes and judges can’t release people, you absolutely violate the presumption of innocence,” she said.

Rahman, a former public defender who helped shape bail laws in New York and other states, said the best research advocates eliminating cash bail and providing personalized release terms for most defendants. People who pose a “clear and imminent” threat to public safety are an exception, she said, and should be detained pending trial.

“Anything bail does is give priority to the amount of money someone has in their pocket, not public safety,” Rahman said.

Republican Sen. Van Wanggard of Wisconsin, a former police officer who supported the constitutional amendment that gained prominence after the Waukesha parade killings, said he doesn’t think posting bail to more people or requiring higher bail violate the presumption of innocence.

“If someone is a repeat offender, I would certainly prefer to have that person locked up than have them commit another crime,” Wanggaard said.

If the amendment is ratified by Wisconsin voters on April 4, judges ordering bail could consider the criminal history of a person accused of a violent crime. Currently, Wisconsin judges can only issue bail as a means of ensuring someone’s return to court. The measure would also require judges to publicly state their reasons for the bail amounts they set.

Opponents say the amendment’s expanded list of offenses is too broad, including watching a dog fight, violating a court order to contact criminal gang members and negligently leaving a firearm where a child has access to it.

Ohio voters passed a similar amendment in November, requiring judges to consider a suspect’s threat to public safety when setting bail. Bills in Indiana and Missouri would also give judges more latitude in considering public safety and criminal history.

In New York, bail has been a polarizing issue since a majority of Democrats passed legislation in 2019 abolishing pre-trial detention for most nonviolent crimes. Many prosecutors, police officers, Republicans, and even some moderate Democrats argued that the changes threatened public safety.

Republican anti-crime candidates running in 2022 saw big gains in the New York City suburbs. And Democratic Gov. Kathy Hochul, under pressure from voters, has said she wants to revise bail laws this year to give judges more leeway in setting bails.

Illinois Democratic bail changes ran into obstacles when the state Supreme Court stopped a new law that would have eliminated cash bail effective Jan. 1. Prosecutors and sheriffs from 64 counties had appealed the measure. The Supreme Court heard arguments about the lawsuit last week.

Baughman, a Utah law professor, said the Illinois law would likely both free more people before trial and improve public safety.

“We are the only country in the world that compels defendants to pay money to obtain a constitutional right to release before trial,” she said. “Poor defendants and people of color suffer the greatest harm when cash bail becomes the norm in a jurisdiction.”

Associate Press writer Jeff Amy contributed from Atlanta and author Michael Hill from Albany, New York.

Harm Venhuizen is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to cover undercover topics. Follow Harm on Twitter.