Andy McCarthy calls out 'hypocritical' Waukesha DA
Fox News contributor Andy McCarthy discusses the three key reasons Darrell Brooks should not have been released on bail.
To require cash bail is to criminalize poverty. That’s the kind of bogus claim you’d expect to hear from an overzealous criminal defense lawyer. To hear it, instead, from a prosecutor is quite something else.
Yet, Milwaukee County District Attorney John Chisolm, the self-styled paragon of progressive prosecutors, has made a career of advocating such reckless "reform" of the criminal justice system. And now, real world carnage is the consequence:
Darrell Brooks Jr., whom Chisolm’s office released on ridiculously low bail from not one but two pending violent crime cases, has allegedly committed the mass-murder attack in Waukesha, Wisconsin, killing six of the people he mowed down in his speeding SUV, and injuring dozens of others.
For the most part, the Left’s critique of bail is specious. Most criminals for whom bail is set at a dollar-amount too high for them to meet are recidivists. There is usually strong evidence that they have committed serious crimes. These are career criminals who should not be released because of the high probability that they would commit more crimes or ignore required court appearances – often both.
That said, there is no reason for the heavy reliance of many states on antiquated cash-bail standards. There is a better solution that would reduce the relevance of an accused person’s financial means.
Rather than financial means, a bail system should focus on the offense conduct alleged and personal history – particularly, the defendant’s criminal history and the salient question of whether, at the time of the alleged crime, the defendant was (a) already on bail in connection with another offense; (b) on probation or parole in connection with a prior conviction; (c) an alien who either had no legal right to be in the country or whose alleged offense violated some condition of entry; or (d) under some other legal restriction, such as a protective order.
This approach has worked for sentencing. Prior to the legislative enactment of guidelines in the state and federal system, sentencing was susceptible to complaints similar to those lodged today at bail. The former system led to scandalous iniquity because people who committed similar offenses and had similar histories received wildly different sentences.
The problem is that many states require courts to set bail, even though the Constitution does not.
In the main, the divergences were based on the judges’ philosophies. Self-styled law-and-order types tended to mete out harsh terms; "bleeding hearts" issued slaps on the wrist. But, there being nothing new under the sun, there were race-obsessed criminal-rights advocates then, too. They rationalized that sentencing disparities stemmed from systemic bias. The chasm in financial resources was said to rig outcomes in favor of the well-to-do.
The advent of sentencing guidelines answered these concerns. In the federal system, for example, defendants are now sentenced according to a formula that weighs offense factors – violence, defendant’s rank in a gang, weight of drugs, amount of fraud, and so on – to arrive at a total offense level, increasing in seriousness from level 1 to level 43.
This computes to a range of imprisonment – for example, 41 to 51 months at level 22. That range can be increased based on the defendant’s criminal history, on a scale that rises from first-offenders in category I to incorrigible recidivist in category VI, for whom 41 to 51 months balloons to 84 to 105 months. It is all worked out on a simple graph.
There is no reason the same kind of system could not work for bail. To be clear, because there is so much misinformation on this, there is no constitutional right to bail. There is an Eighth Amendment prohibition against excessive bail. That is, a court is not required to set bail, but if bail is set, it is not supposed to be pegged to an unrealistic amount that the accused cannot meet.
The problem is that many states require courts to set bail, even though the Constitution does not. That leads to the pretextual setting of high dollar-amounts – meant to deny bail, not grant it. This not only fuels the Left’s narrative that the system is rigged in favor of the rich; it undermines the purpose of bail, which is to permit the accused to be at liberty pending trial, not prevent release.
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It is very simple: If a defendant is a high risk to commit more crimes or flee, that defendant should be denied bail. If not, bail should be set at a level that the defendant can meet – preferably, release on the accused’s own recognizance (i.e., with no assets posted), but otherwise with just enough money or property posted by the accused – or by people, such as family members, with moral suasion over the accused – to provide confidence that court appearances will be made and no new crimes committed.
If an offense is sufficiently serious – e.g., violent crimes that carry heavy sentences – or if a defendant was already under restrictions outlined above, bail should not be set. No more illusion of bail by absurdly high dollar amounts. Pretrial release, then, would be formulaic, like sentencing. There would be no credible claim that race or wealth had anything to do with it.
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Beware, though, the dirty little secret: The Left hates transparency. When sentencing guidelines came into effect, they were soon attacked for being too severe. Because the numbers don’t lie, faithful application results in higher sentences, while undercutting the fiction that race is the driving factor.
The same thing would happen with pretrial detention: More criminals would be denied bail because of the seriousness of their crimes and criminal records. That would mean less crime … but for progressive prosecutors, less crime is never progress.
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