High probability that Barnes plan to end cash bail would have kept parade suspect in jail

In the race for U.S. Senate in Wisconsin, incumbent Republican Ron Johnson and his allies are pillorying Democratic challenger Mandela Barnes as soft on crime.

In doing so, they are combining his longstanding support of an overhaul of the state’s bail system with the horrific Waukesha Christmas parade attack, in which a man who had been released on $1,000 bail is charged with ramming an SUV into the parade, killing six and injuring dozens more.

For instance, the National Republican Senatorial Committee began airing an ad against Barnes, Wisconsin’s lieutenant governor, that starts off with the words: "What happens when criminals are released because bail is set dangerously low." It then segues into footage of the SUV plowing into parade marchers and spectators and slams Barnes for wanting to eliminate cash bail, a measure first introduced in 2016, when Barnes was a Wisconsin Assembly member.

In response, the Barnes campaign issued a news release Sept. 2 that includes this claim: "Under Lt. Governor Barnes’ plan the Waukesha perpetrator wouldn’t have been released." 

In the release, a Barnes spokesperson also accused Johnson and allies of trying to distract voters, but we want to focus on Barnes’ claim, since it is the best way to explore this issue.

At the start, we’ll specify that we can’t know what an unknown judge would rule in a hypothetical scenario, or what evidence prosecutors would present. That’s an asterisk. But we can look at what the proposal called for, and how it matches with the circumstances of the case at hand and reach some conclusions.

Is the claim correct? Let’s take a look.

The "Waukesha perpetrator," of course, refers to Darrell Brooks Jr., 39, who faces 77 charges, including six counts of first-degree intentional homicide, following the Nov. 21, 2021, attack on the Waukesha Christmas Parade in which six people were killed and more than 60 were injured. 

The trial is to begin Oct. 3.

The day of the parade attack, the Milwaukee Journal Sentinel reported, Brooks had two open felony cases in Milwaukee County, a civil warrant in Waukesha County, an open criminal warrant out of Nevada and an open criminal case in Georgia.

In 2020, Brooks was charged with shooting at, but not striking, a relative and another person. Bail in that case started at $10,000. The amount dropped twice, ending at $500. 

Five days before the November 2021 parade attack, Brooks had been released on $1,000 bail in a 2021 domestic violence case, in which he was accused of punching and running over a woman with the same SUV he is accused of using to kill and injure people at the Waukesha parade. 

Brooks had been charged with two felonies (second-degree recklessly endangering safety and bail jumping) and three misdemeanors (obstructing officers, battery and disorderly conduct).

After the parade attack, a firestorm erupted over Brooks’ release, with Milwaukee County District Attorney John Chisholm saying the low bail amount recommendation was a "mistake" made by a young assistant prosecutor "trying to do the very best she could under really difficult circumstances." A court commissioner, Cedric Cornwall, set the bail at $1,000, the amount the prosecutor recommended.

A Milwaukee Journal Sentinel examination found Brooks had been charged with crimes 10 times before the attack, starting in 1999. It also found that Brooks’ bail was considerably lower than the average of similar open cases charged that year in Milwaukee County.

A final note: Bail is not intended to keep people accused of crimes behind bars. The Wisconsin Constitution states that cash bail can be used only for making sure the accused appears for the next court hearing — meaning judges are not supposed to consider public safety when deciding on the bail amount. 

What would have happened under Barnes’ proposal?

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We didn’t have to go far to find the campaign’s backup for the claim. It was all in the original news release. 

That release noted the March 2016 cash bail measure Barnes sponsored included a provision that would require a judge to hold a defendant in custody if there was "clear and convincing evidence" that the defendant would cause serious bodily harm to a member of the community." 

That’s an important element of Barnes’ proposal that Johnson and critics routinely gloss over.

Under the current setup, if people meet cash bail, they must be released. Under Barnes’ proposal, if a judge or commissioner finds by clear and convincing evidence that people are a threat, they are held until trial and no amount of cash would set them free. It’s similar to the federal system, which does not use cash bail.

"If someone is a danger to run, or intimidate or hurt someone, they don’t get out, period – no amount of cash would authorize their release," said Craig Mastantuono, a criminal defense attorney and adjunct law professor at Marquette University Law School. 

Mastantuono said that in his view, when Brooks was arrested in Milwaukee County in November 2021, there was more than enough evidence in the record to hold him in custody without a cash bond:

"He was back under arrest for a second felony charge, bail jumping, and additional misdemeanor charges for again allegedly endangering the safety of another, and he was previously ordered to have no contact with two people."

Under the current system, cash bail can keep you locked up, but cash bail can also set you free, and not much of how it is set takes public safety directly into account, Mastantuono said. "People who can pay high cash bonds get out, and those who cannot pay high cash bonds do not. 

"Mr. Brooks paid his, and went on to be arrested in the tragic events in Waukesha County."

However, others note there is no guarantee a judge would have ruled that way, and say prosecutors might have had to provide additional evidence to make the case Brooks should have been held.

"It is certainly possible that he wouldn’t have been released, but the decision to release him could have gone either way based on the proposed statute," said John P. Gross, assistant professor and director of the Public Defender Project at the University of Wisconsin Law School.

In an email to PolitiFact Wisconsin, he went on to say: 

"The earlier allegations against Mr. Brooks could have factored into a judge’s conclusion that there was ‘clear and convincing evidence’ that he could ‘cause serious bodily harm to a member of the community.’ That being said, the proposed statute states that ‘the nature, number, and gravity of the offenses may not solely constitute sufficient reasons for refusing to release the defendant.’ So a judge couldn’t rely just on the earlier allegations, the prosecution would have to offer other evidence that Mr. Brooks could cause serious bodily harm to a member of the community. It isn’t clear if they would have been able to do that."

Also, Gross said, the statute authorizes a judge to impose conditions of release to protect community members from serious bodily harm. So, instead of ordering that Brooks remain in custody, a judge could have imposed conditions of release to minimize the chances of him harming someone.

The Barnes campaign says that under his plan to end cash bail "the Waukesha perpetrator wouldn’t have been released."

A simple reading of the proposed statute makes clear that it was aimed at cases such as the one involving Brooks, who days earlier was accused of attacking and trying to run over his girlfriend with an SUV. Although the proposal would have eliminated cash bail, it also would have set other specific standards such as this one.

However, it’s impossible to know how a judge would have ruled. In short, the Barnes campaign is stating a certainty where only a possibility — albeit a strong one — exists.

For a statement that is accurate but needs clarification or additional information, our rating is Mostly True.