On November 21, 2021, Darrel E. Brooks, Jr. drove his SUV into a Waukesha County Christmas parade, killing several people. In the immediate aftermath the public learned that Brooks had a lengthy criminal record and was out on an extremely low bond when he piloted his Ford Escape into a crowd of people. 

And so began a familiar parade of well-meaning people drawing the wrong conclusions about how “the system” is broken as it relates to bail being granted to those accused of crimes. 

“Derrell Brooks should have been in jail,” the argument goes—and, granted, Darrell Brooks very well may have belonged in jail. “He was out on bond, so we need tougher rules about who gets bond!” the argument proceeds. Not so fast. 

In most jurisdictions—let’s take Georgia as an example—innocent people are forced to jump through an increasingly intricate series of hoops to prove to a prosecutor and a magistrate court that they are either: (A) actually innocent of the charges brought against them, or (B) have so little criminal history that the idea of them having future contact with law enforcement is laughable.

What does a good candidate for bond look like? I always think of a grandfather who was arrested and held over night for hunting slightly out of season and slightly too close to the local (rural) Target. He had never gotten so much as a parking ticket. He got bond without too much fuss from the State. 

For the rest of the innocent-until-proven-guilty, getting bond typically involves a desperate attempt to show the court that they are worthy of some measure of mercy and shouldn’t be kept in jail without due process. It isn’t easy.

Under GA law, courts are supposed to be guided by the Ayala factors: whether the defendant poses a significant risk to persons or property in the community, a significant risk of intimidating witnesses, a significant risk of flight, or a significant risk of committing an additional felony before trial. I add the italics because prosecutors often engage in absurd hypotheticals about flight to countries the Defendant has never even visited, or future dangerousness based solely on the seriousness of the charges. In practice “significant risk” has been replaced by “conceivable risk.”  

If you have a criminal record the prosecutor will argue that your criminal record makes you too dangerous to release. If you don’t have a criminal record, the prosecutor will insinuate this is because they’ve caught you at the beginning of your descent into criminality. Either way, you’ll hear that you are too dangerous to allow into public unless you can pay an enormous sum to a bondsman. 

If you actually do receive a reasonable bond, the chances are very, very high that you have been charged with a non-serious, non-violent crime, have a good lawyer, or both. 

I do not practice in Minnesota, but from what I can gather from those who do, the prosecutorial tendencies in the Gopher State are generally the same as in Georgia. If there is an error to be made it will almost always be made in favor of keeping someone in jail rather than letting them out. 

So, what happened with Brooks? By all accounts, prosecutors made a mistake. The New York Times reports that Brooks’ bail was first set at an astonishingly low $10,000 and then somehow reduced to $1,000. An internal review of how that happened is underway. 

Had the prosecutors simply followed their own rules Brooks would not have been free. Instead of calling for restrictions and reforms, we should be calling for prosecutorial accountability.

For every Darrel Brooks who slips through the cracks there are multitudes of innocent people or guilty but non-dangerous people who are kept in confinement long enough that they lose their jobs. They lose their homes. They lose the ability to care for their children. They lose these things not because they have committed a crime, but because they have been arrested. We do not feel these losses because we do not hear about them. The story of the line-cook who gets fired and evicted because he spends three weeks in jail for possession of a controlled substance does not make the front page. 

As we consider how to prevent the next Brooks, let us come to grips with the fact that not every act of lunacy can be prevented by keeping everyone who gets arrested behind bars indefinitely. Although we may not feel it personally, we pay a price when we make the denial of freedom without due process the norm rather than the exception. If we actually followed our current rules—as written—there would have been no Derrell Brooks tragedy. But there would also be far fewer tragedies of the quiet variety, where a life is destroyed by a simple arrest and an uncaring bond system.

Charles Cullen is a graduate of Notre Dame University and Georgia State University College of Law. Charles is an Atlanta native and was a journalist before joining the team at the Arora Law Firm.


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