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The US Constitution is inconvenient. It explicitly prohibits excessive bail. The desire of conservatives to use bail to keep poor defendants in jail pending trial shows that they don't believe in the Constitution. We have an almost absolute right to be released pending trial unless the prosecution can prove that you are a flight risk or an immediate danger, and there is a very high standard for such proof (as there should be).

The problem is not low or zero bail. The problem is more systemic and Brooks is a case in point: There has been an arrest warrant out for him from Nevada for five years, for failure to appear at a court hearing. Brooks has been arrested since then, but was never extradited. Most states are happy not to extradite because (1) it costs a lot of money, and (2) the fugitive is now another state's problem. Nobody wants to pay higher taxes to incarcerate people who are out of sight, out of mind.

And that gets to the other issue: Having had already failed to appear and fled another state is clear evidence of being a flight risk, and the long rap sheet of violent crimes means that he should not get the usual benefit of the doubt. Brooks is exactly the kind of person who should have been remanded pending trial and denied any bail. But if we did that to everyone in such a situation it would require raising taxes to build more jails.

The anti-tax movement of the past 50 years has had negative consequences. In most of the US, the entire law enforcement and criminal justice system is grossly underfunded, with too small police departments, too few prosecutors, judges, and courtrooms, and nobody wanting a jail in their nice neighborhood -- but too many people doing prison time for minor drug offenses, in places where the prisons are a major source of employment. The entire system is screwed up and we aren't willing to change it.

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It strikes me that two things are true at once here. One, that he absolutely should not have been granted such a low bail. Two, that cash bail is almost always something that penalizes the poor, not the worst offenders. This isn't a matter of 'true communism has never been tried.' It's been demonstrated that cash bail is a way for lots of places to keep their poorest offenders in jail, where they are then charged for it, and then are imprisoned longer because of their inability to pay. It is decidedly un-egalitarian that one's wealth should decide whether or not they are in prison.

Again, none of this means that this person should have been granted such a low bail. But that doesn't take away that cash bail is a racket designed to punish the poor.

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The purpose of bail is to ensure that the defendant shows up for court, not to punish defendants before they can be tried. Imposing reflexively high bail on all defendants may be politically popular, but it amounts to a presumption of guilt against the indigent, who are given the choice between pleading guilty or serving an entire sentence while awaiting trial. On the flip side, a wealthy person who can post a large bail may still pose a danger to the community. Imagine that the Waukesha defendant had posted bail of $10,000 or even $100,000. Does anyone think that would have stopped him, in the agitated state he was in, from driving into the parade? Higher bail would not have saved those people.

There is a solution here, and that is to deny bail altogether for defendants who are deemed to be dangerous or a flight risk. Force judges to go on record when making those determinations, and bring those cases to trial quickly. For other defendants, bail should be affordable, and not more than necessary to assure the defendant's return to court.

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I know Thanksgiving is over but I'd just like give some thanks for the whole Bulwark crew, even Shay Khatiri :D, and the wonderful people who take their time to make this comments section almost as much of a must read as Charlie's actual newsletter.

From a deep blue dot in a bright red Florida county.

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I'm not defending Prosecutor Chisholm's policy, which undoubtedly has some flaws. But one must also ask whether his office was adequately funded to properly handle its case load. Too often, prosecutorial staff makes decisions based on workload considerations and, in that chaos, some really bad apples get loose. You get the quality of prosecution that you pay for - and too many municipalities aren't willing to fund sufficient, competent prosecution staff.

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It seems painfully obvious that Darrell Brooks shouldn't have been out on jail. And it's easy to take a swipe at the prosecutor for recommending low bail, but the final decision who gets released on bail and how much they have to post is up to a judge.

If we're going to make blanket condemnations about the consequences of this guy being out on the street, then let's make it a full and fair treatment. Prosecutors can recommend,, but judges decide the issue of bail.

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Jeffrey Toobin wrote the article on Chisolm? He was probably....uh...distracted.

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I want to ask Charlie if he has done the reporting (or read the reporting) to know if there is a bail problem in this case. I don't know. But I am very familiar with the issue of bail in the NY/NJ area. Prosecutors over charge poor men and women arrested on criminal charges. The only way to a quick resolution is to plead cases so over charging gets defendants to accept a plea deal. Locally, the NYC jail was full with poor men (most of them kids). And if you dared defend your rights, you might spend a year or more in jail. At least once case was simply dismissed because the defendent had been jailed for more time than even a conviction could yield.

NJ and NY are in the early years of bail reform. So far there is no increase in crime that can be fairly attributed to bail reform. But let's also admit that there are many horrible thing done by ex-cons as well as by folks who have never been convicted.

Life is ultimately a bitch.

So... let's get the details re the case in your home state. It is easy to look at one bad event and extrapolate unfairly.

Better than bail, we need to find a way to allow folks to be tried soon (a speedy trial).

Oh - there is also a long history of shitty police work that railroaded the poor.

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For reasons that still confuse me to this day, democrats (I count myself as one of them) have been shockingly unable to discern between crimes of violence and crimes of poverty and addiction. This confounding failure, combined with republicans' general desire to lower taxes, has resulted in disastrous legislation in many states, Montana being one of the worst. "Justice reinvestment," as it is known in Montana, passed with strong bipartisan support. It was a rare marriage of two warring groups who bought into reform for completely different reasons. They were both wrong.

Crimes of addiction and poverty to not necessarily require lengthy incarceration as long as those defendants can receive support, treatment, and accountability in their communities. For republicans, supporting justice reinvestment meant that incarceration costs would be lower with more offenders on probation rather than being incarcerated. Actually paying for the support and accountability a meth addict needs, however, was a bridge too far for many republicans.

For democrats, the idea that social justice could be enacted through justice reinvestment meant that justice would truly be blind - blind to race, wealth, poverty, and gender. Regrettably, justice was also blind to the types of crimes committed by offenders.

I've been prosecuting domestic violence cases for almost a decade, and can now confidently assert that liberal desires to promote social equality are largely to blame for some totally preventable crimes and violent acts. By refusing to assess the nature and facts of a particular offender, particularly with regard to the risk they pose to victims in intimate partner relationships, a significant number of violent offenders are released on low bail and others are paroled early from prison. The results are as real as they are tragic. In May of 2020, one particularly high-risk offender was paroled early from prison after being convicted of stabbing a family member with a knife. The offender was given a second chance (win for liberals) and tax payers were left with a smaller bill (win for conservatives). Within months, the same offender brutally stabbed his girlfriend to death in front of her three minor children. Had policy permitted parole board members the ability to assess the offender's previous crimes and his attitudes towards resolving conflict, he would never have been released from prison. In short - democrats have far too much faith in human beings, and republicans have far too many unrealistic expectations for offenders who likely suffered a variety of trauma during their formative childhood years.

As one reader points out below, mass incarceration of low-risk addicts and thieves is the true waste of taxpayer dollars. Conversely, releasing high-risk domestic abusers from jail under the guise that they can be "treated" and/or "fixed" is an even bigger waste of resources, and the costs to victims and children are real and exponential for decades. Democrats don't like giving up on people, and republicans seem comfortable with the same until it costs taxpayers more money.

Democrats own this problem much more than republicans. Democrats needed republican support to pass this legislation in Montana, but they certainly didn't need it in Washington, Oregon, and other left-leaning states that enacted similar legislation. Perhaps I am a complete homer for the president, but his work on the Violence Against Women Act (VAWA) and his generally moderate positions on crime are a relic from a different time. They are based in reality and a basic understanding that using the criminal justice system as a laboratory for social justice reform comes with deadly risks. Many liberal democrats in the current era lack the same perspective, and they will keep paying for it until they can get a grip on reality.

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I think this article conflates low bail and low sentences/inappropriate plea agreements. In most cases bail is to ensure appearance, not to start punishment before trial. The exceptions are for public safety. This guy fits the bill with multiple violent offenses and should have been in jail — IF the court can deal with his case(s) promptly. Keeping people in jail for months and years before trial is awful and unjust and punishing poor people for being poor.

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Charlie, please pay Amanda Carpenter enough money so she can afford internet and not have to dumpster dive her local goodwill for 10 year old used DVDs. Thanks in advance. :)

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Charlie, I agree with you that if we think there is an existential threat to our democracy then we should act like it. So in that spirit I am looking forward to the future Bulwark pieces going after Manchin and Sinema for being the only reasons democrats have not been able to pass any kind of election reform laws as of November 30th, in the Year of Our Lord Two Thousand and Twenty One.

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It's impossible to say at this point whether any BLM sympathies led Brooks to this heinous act. Did BLM sympathies cause him to try to run over his ex-girlfriend the week before? And, how about this officer, who apparently treats life as though it is an action movie:

"A decade ago, during a traffic stop, a Milwaukee police officer jumped inside Brooks’ car, fearing he was about to be run over. The officer had pulled him over for not wearing a seat belt. As Brooks began to drive away while the officer was talking to him, the officer got inside the car and wrestled for control of the steering wheel.

"Eventually, the officer was able to stop the car and removed the keys."

There seems to be a recurring theme with Brooks of attempted vehicular homicide.

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Because nuance isn't something we do well in this country.......it probably never occurred to whoever (f---ing idiot) made this decision that allowing this guy out on such a low $$$ wasn't a good idea. We really have A LOT of genuinely stupid people incapable of speaking truth to power. Maybe any crime involving a deadly weapon should automatically make the bail amount $10,000? Maybe a career violent criminal should automatically make the bail amount $20,000? There is no reason this guy should have been out and about.

Wisconsin seems to be dropping ALL the balls lately....you guys are giving Florida a run for its money.

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I have not gone into this one case in detail, but I'm a bit skeptical of Charile's claim that dangerous offenders / flight risks are being released all over the place by the Milwaukee prosecutor. In general, the push to stop using excessive bail to punish poor people who have not even had their day in court is the right one. Knowing today's GOP, this is indeed just another attempt to drum up fear in their white constituents and to take an isolated, high-profile case and use it as a cudgel to beat Democrats with.

Democrats – on this issue and everywhere – need to stop just playing defense and start framing issues in a way that does them credit and hangs the Republicans with their awfulness. Otherwise, hat tip to the insightful George Lakoff, they're just saying "Don't think of an elephant." https://www.berkeleyside.org/2017/05/02/berkeley-author-george-lakoff-says-dont-underestimate-trump

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Maybe Wisconsin is different, but I've never heard of bail being set by a prosecutor. Bail is set by judges. Sometimes multiple judges in a jurisdiction even agree on a bail guidelines policy, although judges retain discretion in individual cases. Often, those policies have input from prosecutors and other stakeholders, but the judges will be the first to tell you they're in charge.

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