Behind the prosecutor who acknowledged suspect’s ‘inappropriately low’ bail before Waukesha parade tragedy

By Peter Nickeas, CNN

The Milwaukee County district attorney whose office sought low bail leading to the release of the man accused of running over holiday paradegoers in a nearby suburb has been a longtime champion of efforts to reduce mass incarceration by using the discretion afforded prosecutors.

Darrell E. Brooks, 39, of Milwaukee, now faces murder charges after authorities said he killed six people and wounded more than 60 others by driving through the Waukesha Christmas parade on Sunday. Brooks was out on bail for two separate allegations of violence, including one where he is accused of using a car to run over a woman less than three weeks earlier.

Milwaukee prosecutor John Chisholm’s office released a statement Monday morning, saying his office erred in seeking bail of $1,000 in the most recent case involving violent allegations against Brooks. He posted bail about a week after he was charged and was released from custody.

“The State’s bail recommendation in this case was inappropriately low in light of the nature of the recent charges and the pending charges against Mr. Brooks,” according to the statement. “The bail recommendation in this case is not consistent with the approach of the Milwaukee County District Attorney’s Office toward matters involving violent crime, nor was it consistent with the risk assessment of the defendant prior to setting of bail.”

The statement from Chisholm’s office said they were “conducting an internal review of the decision to make the recent bail recommendation.”

State law sets out factors for judges to consider in setting bail amounts, including whether someone’s likely to return to court and whether they’re likely to hurt other people, said Julie Rendelman, a former prosecutor of homicides who’s now a defense attorney. One of the charges Brooks faced earlier this month was for not returning to court, and another was for an allegation of violence.

“It looks like they just screwed up,” Rendelman said. “They dropped the ball, it really is that simple. I don’t think it speaks to bail reform.”

Prosecutors across the country this year have confronted a logistical challenge caused by the pandemic, balancing the need to move cases through the system with the risks of exposure that comes with defendants going to court and jail.

Officials have sought ways to keep defendants out of the system while still respecting the serious nature of allegations against defendants; in some jurisdictions it’s led to lower-than-normal bail requests or bail amounts in order to keep defendants out of jail. In some cases, those requests dovetail with prosecutor offices whose approach to defendants is more lenient than prosecutors have been for decades. It’s not clear what role that may have played here.

His prosecutorial philosophy, explained

Chisholm took office in 2007 after working for years as a prosecutor and holding a senior position under his predecessor, E. Michael McCann, who held that office for 38 years. McCann endorsed Chisholm as a successor in 2006. Chisholm ran unopposed in 2020.

In an interview in 2015 with The New Yorker’s Jeffrey Toobin, a current CNN legal analyst, Chisholm said 10% of 15% of cases prosecutors handle were for homicide and gun crimes. The rest were for less serious crime — the difference between “people who scare us” and “people who irritate the hell out of us,” he said.

“The most important thing we can do with those people is incapacitate them, so they can’t do any more harm,” he told Toobin.

Part of his approach was reducing the number of people Milwaukee County was sending to state prison for low-level drug offenses, but attempts to reduce racial disparities in prosecution and sentencing have been complicated by the racial makeup of violent crime victims and offenders, Chisholm said.

“We’re no longer sending low-level drug offenders to state prison, but we are still sending violent criminals, and that’s keeping the African-American numbers up,” Chisholm told Toobin. “If we do this right, the people who are going to prison should be going to prison. The people who are going to prison are dangerous.”

After he won election in 2006, Chisholm told the Milwaukee Journal-Sentinel the next year that it was “guaranteed” that someone his office diverted from jail would go on to kill someone.

“Is there going to be an individual I divert, or I put into treatment program, who’s going to go out and kill somebody?” Chisholm told the  Journal Sentinel. “You bet. Guaranteed. It’s guaranteed to happen. It does not invalidate the overall approach.”

Chishom’s office did not respond to CNN’s requests for comment.

‘You can’t pin cash bail’ to violence spike

The term “bail reform” has loosely been used to describe any policy that results in a lower threshold for holding accused criminals in jail before they’re tried before a judge or jury, or before they plead out or prosecutors drop charges.

It’s not clear that reform efforts were to blame here: Chisholm’s previous statements have made a distinction between people accused of violence and accused of lower-level crimes. Brooks isn’t alleged to have committed violence while being out on low bail for a non-violent offense.

Chisholm was first elected before two instances of police use of force triggered nationwide protests and led to so-called progressive candidates running for election in local prosecutor races. Policies favored by progressive prosecutors are sometimes a sore spot for those in law enforcement, who frame them as being soft on crime.

In Chicago over the summer, the city’s police superintendent took issue with a federal judge releasing someone accused of supplying the gun used to kill a Chicago police officer.

“It’s an outrage,” Chicago Police Superintendent David Brown said. “When I heard this afternoon that a federal judge had released the man who illegally purchased and then supplied the gun used to murder Officer Ella French, I could not believe it.”

The issue of reform emerges whenever someone accused of a violent crime that garners significant attention also has a history in the criminal justice system, like Brooks. The significant increase in homicides across America in 2020, and the continuing of that trend in some major cities, has led to more debate.

“You can’t pin cash bail to the spike in violent crime because, for one thing, cash bail affects mainly low-level non-violent offenders,” Jody Armour, a professor of law at the University of Southern California, told CNN over the summer.

“A judge has to make a determination at court ahead of time that the person is safe to reenter society before they can even get cash bail,” he added.

Chisholm has said his office should focus on keeping violent people in the system and non-violent people out; Brooks was accused of violence and a prosecutor still sought low bail. It’s not clear why the state sought low bail or why the judge granted the request.

In that case, from early November, Brooks is accused of running over a woman with his car while she was walking through a gas station parking lot, leaving tire tracks on her left pants leg. He was charged with recklessly endangering safety, felony bail jumping, battery to a police officer, obstructing an officer and disorderly conduct, according to a statement from the district attorney’s office.

His bail jumping charge stemmed from an incident in July 2020. Brooks had made bail on a gun charge earlier this year, in February, according to the statement.

There’s disagreement over bail reform’s link

Rendelman said prosecutors often have a cheat sheet they use to determine their bail requests, and she said it was unlikely that any bail request guide would suggest $1,000 was appropriate to request considering the allegations of both violence and not showing up for court.

“This case seems different because he has lengthy history, has indications that he’s not going to come back to court, and the case being brought against him, the allegations are extremely violent,” she said.

During a congressional hearing in late June, Sen. Lindsey Graham, a South Carolina Republican, suggested reforms eliminating cash bail could partially be to blame for the summer violence increase. Graham asked FBI Director Christopher Wray if he believed “one of the reasons crime is on the rise is that certain jurisdictions have basically eliminated bail?”

Prosecutors have wide discretion in arguing for high or low bail amounts for defendants facing trial, though it’s usually up to a judge to decide. Prosecutors also make those choices locally — prosecutors in one county might not prosecute a low-level drug offense while prosecutors two counties away seek years of jail time for the same allegation.

It’s not clear whether, or how, bail reform efforts are tied to the increase in violent crime, if at all. There’s wide disagreement between law enforcement and academia over how much it’s connected.

Studies on certain jurisdictions, such as the county encompassing Chicago, disagree on whether cash bail can be linked to any increase in crime. Two studies from the University of Utah and Loyola University Chicago came to opposite conclusions on whether the bail reform in Cook County led to an increase in crime in the county. These studies of Cook County are a clear example of how researchers disagree  on methodology in studying the effects of bail reform and increases in crime.

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CNN’s Emma Tucker contributed to this story.