No more bail, please
Suppose an employee of a Fortune 500 company, with an extensive criminal record and felony time in prison, used his company car to try and run over the mother of one of his children.
A week later, he returns to work after posting bail, still facing a domestic-battery charge. His employer gives him back the keys to the company car, and the employee then goes on a murderous rampage in which he runs over and kills six people and injures 60 more.
That would be a “duh” liability moment. If Walmart or Amazon behaved that way, they’d pay dearly for knowingly putting the public at severe risk. Some company decision-makers would lose their jobs; others might face civil litigation.
Yet when government officials— judges, court commissioners, state attorneys—behave in exactly the same negligent, irresponsible and reckless way, any legal repercussions and opportunities for justice are greatly diminished, if they exist at all.
Waukesha, Wis., is only the latest and one of the most egregious examples of prosecutors and judges returning a known-risk violent predator to society without any accountability for what happens next.
You don’t have to be a probabilities expert to predict what usually happens when career violent criminals are released rather than detained while facing their umpteenth charge and trial. They commit more crimes. Let’s take a brief look at the life and crimes of the Waukesha parade suspect that span 22 years and three states.
First adult felony: 1999 for substantial battery intending bodily harm. From then on, these are the years in which he was arrested, charged, issued warrants and/or convicted of crimes: 2000, 2002, 2003, 2005, 2009, 2010, 2011, 2012, 2013, 2014, 2105, 2016, 2020, 2021.
Since 2007 he’s been a registered— but repeatedly non-compliant—sex offender after raping and impregnating a minor. His list of charges include aggravated battery, felony drug offenses, resisting arrest, strangulation and suffocation, domestic violence, bail jumping, probation violation, illegal firearm possession, reckless use of a firearm, and—the charge he was out on a measly $1,000 bail from when he allegedly plowed through the parade—running over his ex-girlfriend on Nov. 2.
Just this year, here are the months in which hearings were held or appearances made in his two open felony cases during which the state could have, but chose not to, confine him to jail: February, March, June, July, August, November.
It turns out that his “inappropriately low” bail—the understatement of the decade—is part of a pattern in Wisconsin and other states. A local TV station investigation found “dozens of [2021 domestic abuse] cases where bail was set under $1,000, including 45 felonies.”
Cash bail has come under fire in recent years for wealth bias, and some judges, like those in Milwaukee County, seem to believe that a corrective measure is making bail more affordable for poorer defendants, even if they’re dangerous.
Bail has a long history, predating American independence. Early on, bail was only granted for non-serious crimes, under the idea that if accused people had to pay the court, they were less likely to flee.
Reform acts by Congress in 1966 and 1984 refined the process, the latter giving judges greater discretion and incorporating safeguard considerations for defendants deemed to be a menace to society.
The real disparity that is now begging to be addressed is upstream from bail, however.
Crimes in the U.S. are generally classified three ways: infractions, misdemeanors and felonies, and based on punishment, which is related to seriousness of offense.
Infractions are only punishable by fines; misdemeanors usually carry less than a year of jail time; and felonies a year or more in prison. All are subdivided by class or degree that can create a mix of punishments including fines, probation, community service and incarceration.
Those classifications are from a time very different from today in countless ways. We need a new fourth category of crime dedicated specifically to violence, because violent criminals are inexorably different from nonviolent ones.
There is definitive data that demonstrates and accurately forecasts recidivism risks of violent offenders, and in violent cases (whether misdemeanor or felony, and especially any crime involving guns) everything—from bail to punishment—should be based on separating violent criminals from society. That’s the only thing that works. At the same time, let’s consider revising the immunity statutes for judges and prosecutors. There’s no reason they should be universally protected from poor decision-making that results in probable loss of innocent life.
Indeed, of all people, they witness the carnage wrought by violent crime on a daily basis. They need risk of personal liability to curb their urge to see a forest they want to fix rather than individual trees presenting danger.
Nature has already given violent criminals a capacity to hurt and harm that separates them from everybody else. It’s time our criminal justice system recognizes that distinction, and restructures to address it.
A simple “no bail for violent convicts” policy in force would have saved everybody at the Waukesha parade. And that’s only one incident in one day. Multiply across the states and over years, and the public safety benefits would be incalculable—and priceless.