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Nolan Finley: Bail reform will save lives

The Detroit News - 12/9/2021

Dec. 9—The bail system is broken. It unleashes dangerous criminals on the public while keeping locked up those who present little risk to their communities.

But thanks to Darrell Brooks and a negligent prosecutor and judge in Wisconsin, talking about bail reform is suddenly taboo.

Brooks is the career criminal who, for reasons still unexplained, drove his SUV through a Christmas parade in Waukesha, killing six people and injuring 60 others. He was able to get behind the wheel of that weaponized vehicle because the local court released him on a mere $1,000 bond after he was arrested for running over his ex-girlfriend days earlier.

Brooks, who's been involved with the criminal justice system for 22 of his 38 years, at that time was already free on a $500 bond for firing a gun at his nephew late last year in a dispute over a cellphone.

He's become the main argument against the bail reform movement, a much-needed effort to reconsider when a cash bond is appropriate and when other measures might work just as well to protect the public and assure the defendant returns to court.

Wisconsin hasn't reformed its pre-trail procedures, and that's one reason Brooks was able to avoid jail despite his very clear threat to society.

In Michigan, a package of reform bills are pending, including one that would put in place a statutory structure for deciding when and how bail is set.

"The goal is to protect public safety and make sure decisions that are made in setting initial bail are appropriate to the offender," says state Rep. Andrew Fink, a Republican from Hillsdale and the bill's sponsor.

The proposals recognize that many non-violent offenders, perhaps most, aren't a danger to the community and will voluntarily return to court for their proceedings. Currently, poor defendants who can't afford bond stay locked up for weeks or months awaiting hearings on minor offenses.

In the meantime, they may lose their jobs and the ability to meet their financial obligations, including child support payments, and become more susceptible to criminal temptations once they are released.

"If you're indigent and non-violent, and there's no evidence you won't return to court, there should not be a monetary barrier to getting out of jail," Fink says.

Instead of cash bail in those cases, defendants would undergo a risk assessment that might lead to their release with a tether, under court supervision or other measures to assure compliance.

The very significant side benefit is taxpayers aren't stuck with the bill for housing the defendant in local jails.

Conservatives like Fink are leading criminal justice reform efforts across the country. The aim is to focus the system on redemption and rehabilitation, reduce recidivism rates and turn former criminals into productive citizens.

"The real issue we have as conservatives is when you lock up people who don't have the resources to make bail, they're not working, so their employer takes a hit and their family pays a price," says David Safavian, legal counsel for the American Conservative Union. "There's a cascading effect. Data and research shows us that if you spend 24 to 48 hours behind bars, you are more likely to commit another crime."

For most offenses, the state constitution requires bond to be set. Judges have the discretion to order an extremely high bail, as did the judge hearing the case against the parents of the Oxford High School shooter. Under the reform proposals, that wouldn't change.

"For people who are real public safety threats, we don't care if they can make bail or not," says Safavian. "Where we get into it is those who are not public safety threats. Housing them behind bars makes no sense whatsoever."

It also leads to disparate justice, with poor defendants stuck in jail while those with more resources can bond out, even though they committed a similar crime.

Momentum was building throughout the country for criminal justice reforms, including of bonding decisions. But Brooks and other high-profile defendants who've done terrible things while out on bail have become a speed bump.

"We were already starting to swim upstream," Safavian says. "Our friends on the left have become too overreaching and our friends on the right are reverting back to their tough-on-crime type. The gap had narrowed, but now is getting farther apart due to politics."

The biggest obstacle are prosecutors and judges who screw up, as they did in Waukesha. Had pre-trial reforms been in place like the ones proposed for Michigan, the Wisconsin court would have had to do a risk assessment on Brooks.

Given his record, the assessment would almost certainly have produced a sky-high bond recommendation that he would have been unable to meet. Brooks would have still been in jail, and six people in Wisconsin would still be alive.

Twitter: @NolanFinleyDN

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Watch Finley on DPTV's "One Detroit" at 7:30 p.m. Thursdays.

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