Wisconsin bail reform proposal allows judges to tie cash to danger

MILWAUKEE - Bail reform is coming to the ballot box in April. That means you will decide if judges should change the way they set cash bail in Wisconsin. 

Supporters of a proposed constitutional amendment say it will give judges the ability to take public safety risk into account for the first time in more than 40 years. Critics say it will do little to protect the public from dangerous people.

It's an issue Nikki Byrd never thought much about until last fall when her son, 20-year-old Danari Peer, died in a car crash on Milwaukee's northwest side. 

"I make him dinner every night," Byrd said, still using present tense to describe her close relationship with her only biological child. "We still cuddle. We watch TV together. We do everything together. He’s literally my best friend."

Two months after the crash that killed Danari, Byrd wrote a poem that begins, "I had a son."

"I don’t know what I am right now," Byrd said, tears streaming down her cheek. "I don’t even know why… I don’t even know why I'm here now."

"You're always going to be Danari's mother," comes a reassuring voice beside her.

It's Lamont Peer, Danari's father. 

"Justice for Danari is your purpose now," Lamont said.

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On Oct. 5, 2022, the 20-year-old Peer was a passenger in a car that was practically blown apart.

"They had hit the car first, then the tree," said Kejaun Carter. 

Carter was parked nearby when he heard the crash and rushed over to help. Danari was still breathing, but didn't speak a word. 

"He was just sittin’ there lookin’ at me," Carter said.

As Danari lay trapped and dying, Carter said he and others pulled a young man out of the driver's seat.

"He got out the car like screaming, saying his wrist and head and stuff was hurting," Carter said.

According to prosecutors, Jai'quann McMurtry was trying to race another car down Appleton Avenue when he slammed into an SUV and two trees at 109 miles per hour.

"This just can’t keep happening," Lamont Peer said.

In an all-too-familiar refrain, McMurtry was out on bail at the time.

"What we’re doing is not working," Byrd said.

At just 20 years old, McMurtry had three open felony cases for possession of guns, dealing drugs, and bail jumping. He also has a juvenile conviction for armed robbery by force. Still, police say he was free to engage in a deadly drag race after buying his way out of jail for $3,500 cash.

"We have to change our bail system. We have to change it," Byrd said.

McMurtry is one of a growing number of criminal defendants in Milwaukee charged with violent crimes after bailing out for a previous offense. A FOX6 investigation in 2021 found one-in-five people charged with homicide that year were free on bail at the time. It's a figure state lawmakers are still citing in official testimony as they push for bail reform.

"A whopping 21% were committed by persons on bail," State Senator Van Wanggaard read from his prepared testimony, referring the findings of the FOX6 Investigation. "Wisconsin’s current system of bail is broken."

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But how to change that system for the better is where policy meets politics.

"How much money guarantees a person is moral?" asked State Senator Chris Larson at a public hearing on bail reform Jan. 10.

"Does higher bail keep the public safer?" asked FOX6 Investigator Bryan Polcyn.

"I think it does," Sen. Wanggaard said.

"It doesn’t," Sen. Larson said, answering the same question.

Since 1981, the Wisconsin Constitution has only allowed judges to consider one factor when setting cash bail – the risk the defendant won't show up for court.

"The goal is just to make sure a person comes in for their trial," Larson said. 

Republican leaders want to change that.

"We’re going to let the judge look at your criminal convictions," said State Rep. Cindy Duchow, a Waukesha County Republican and one of the lead authors of a constitutional amendment aimed at giving judges more flexibility when setting cash bail amounts.

It's a proposal she's been working on for years, but one that gained immediate traction after Darrell Brooks drove his mother's SUV through the Waukesha Christmas Parade in 2021. Brooks had been released from jail days earlier on $1,000 bail after police say he ran over his girlfriend with the same SUV.

"I can’t tell you what the right amount of money was," Duchow said, "But I can tell you it wasn’t a thousand dollars."

Now Duchow's effort to amend the state constitution is on a fast track.

"Just based entirely off of fear," said Larson.

"This is about a constitutional amendment that simply, simply, simply, simply, allows judges to take into consideration dangerousness," said Michael Thurston, Deputy District Attorney for Waukesha County. 

According to information compiled by the National Conference of State Legislatures, 45 other states expressly allow judges to consider a defendant's criminal record or public safety risk when setting bail.

"Wisconsin is the only state that allows judges to consider only a single factor," Wanggaard said. 

"Not only are we an outlier," said Thurston, "but we are down the street, over the hill, beyond the ocean, out on an island by ourselves."

Senator Larson agrees the state's bail system is not working. 

"We have a broken system," Larson said. 

But, Larson said higher cash bail is the wrong reform.

"Why are we not taking money out of the equation entirely?" Larson said.

For one thing, Larson said higher bails give an advantage to defendants with access to cash.

"You can pay your way," Larson said. "This is making sure people who are poor will not be able to be released."

Adam Plotkin, a lobbyist for the State Public Defender's Office says truly dangerous offenders should not be able to get out of jail before their trial at all.

"Why should a person who is alleged to have done all those things be able to purchase their release?" Plotkin said.

"What’s the amount that says they’re not going to get out?" asked Polcyn.

"The question is going to be for the judge," Wanggaard replied.

When prosecutors charged Jai'quann McMurtry with homicide for the death of Danari Peer, a judge set his bail at 50,000. Days later, a local youth mentor and family friend named Marvel Coleman paid to get him out.

And then... changed his mind.

"He writes ‘I’ve been stressed out over this,’" Attorney Scott Wales said as he read from a letter his client, Coleman, wrote to Judge Ellen Brostrom. "'I did not have any idea I would be reported to the news."

"Mr. Coleman has the right to post and he also has the right to withdraw that posting," the judge said, before rescinding the bail and sending McMurtry back to jail.

It was the second time in two months someone bailed out a homicide defendant in Milwaukee, then withdrew the bail only after the FOX6 Investigators started asking questions. In November, a convicted drug dealer named Richard Stulo posted $100,000 cash bail to spring accused killer – and three-time Most Wanted fugitive – Kenneth Twyman from jail. Stulo planned to make 10% interest by loaning Twyman's family the cash. He asked for his money back after FOX6 informed his probation agent that profiting from a bail payment in Wisconsin is against the law.

But what bothers Nikki Byrd most is she believes the man accused of killing her son was too dangerous to let out regardless of the price tag.

"He should not have even gotten bail," she said.

"If they are a risk to the public," Larson said, "then they should not be let out pretrial."

And that's why Senator Larson wants to eliminate cash bail and replace it with a pre-trial detention system based entirely on risk.

"Use risk as the determinant rather than cash," Plotkin agreed.

Republicans who control the legislature say that was never an option.

"Getting rid of cash bail was not even a consideration," Duchow said.

"Do you believe cash bail is keeping the public safe?" Polcyn asked.

"No," Byrd replied. "No. Mmm mmm. No."

Byrd is not convinced a constitutional amendment is enough.

"Is it perfect, no," Byrd said. 

Then again, Byrd figures some reform is better than none.

"I definitely think it’s a better start than where we are now," Byrd said.

One thing she knows for certain. There's no amount of money that will bring Danari back.

Earlier this month, state lawmakers voted for the second time in two years to allow judges to consider a defendant's risk of causing serious harm when setting bail. Now, that proposal goes to a statewide public vote.

Two bail-related questions will now appear on the April 4th election ballot. Here's what they will ask you to consider:

QUESTION 1: "Conditions of release before conviction.  Shall section 8 (2) of article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?"

QUESTION 2: "Cash bail before conviction.  Shall section 8 (2) of article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, including the seriousness of the crime, previous convictions of the accused, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation, and potential affirmative defenses?"