Milwaukee County prosecutors and the court made a tragic mistake in the Darrell Brooks Jr. case. But their risk assessment system worked.
The recent tragedy in Waukesha was heartbreaking. The violence and loss of life sent shockwaves through our community. It has also prompted another examination of our justice system as people try to draw appropriate lessons for public safety.
Unfortunately, some politicians have seized on this tragedy to promote changes that would be detrimental and would, in fact, have little if any benefit to our community.
There are a couple lessons that we can draw from this terrible incident.
First, while Milwaukee County District Attorney John Chisholm has been appropriately criticized for his office’s bail recommendation in Darrell Brooks’ pending case, he also should be applauded for stepping up and accepting responsibility for the failure of his office to make the right call. He exhibited a “buck stops here” toughness that is sorely lacking in most elected officials today. Too often we see politicians pointing fingers at everyone but themselves when things go wrong.
Another important thing to understand is the way good bail decisions are made — by relying on evidence. The process of setting bail in Milwaukee County is assisted by a risk tool called the Public Safety Assessment. 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, who make the ultimate bail decisions.
Among the factors the PSA “scores” are defendants' prior record of convictions, the type of offense they are currently facing, their history of missing court, their history of violence, their age, and their record of prior incarceration.
Some people have been saying that Brooks should have stayed locked up with a high bail because he was arrested for a violent offense, but that’s not the whole story. The PSA process recognizes that the current charge itself should not be the sole factor determining whether someone gets out of jail. Brooks should have had high bail because of his elevated score on the PSA, but that score 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.
In short, the risk tool worked, but it wasn’t followed. Brooks should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious 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.
The tragedy in the Waukesha case is not something that can be remedied by getting politicians involved in the process of setting bail; well-informed bail decisions are not made in the halls of the Legislature. They’re made by experienced prosecutors, defense counsel and judges, relying on the evidence in each case. The key is following the evidence, meaning appropriate high cash recommendations when a person’s history includes pending violent offenses, an extensive record of convictions, and a demonstrated history of missing court, as was the case with Brooks.
It also means release on recognizance even on some serious cases, if the evidence shows a person is not high-risk. The evidence was missed or ignored in the Brooks case, and that’s on the DA’s office. Chisholm has acknowledged this.
There has been discussion of whether this case is the result of the bail reform movement, which has drawn criticism in New York and other jurisdictions. The bail reform movement generally contemplates the total or near-total elimination of cash bail. That is not what we have in Milwaukee County. We have an evidence-based, validated risk assessment instrument that provides information to justice system professionals to make a smart bail decision in each case. The evidence points the way but gets the right result only if it’s not ignored.
Craig R. Johnson is a criminal defense attorney in Milwaukee. He is the president of the Wisconsin Justice Initiative, a non-profit working for progressive change in the justice system.
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This article originally appeared on Milwaukee Journal Sentinel: Darrell Brooks Jr. case was a tragic mistake. Risk assessment worked.
