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| Alissa Marque Heydari |
As a parent of a young child, I cannot imagine the suffering of the victims and their families, and I hope for a swift recovery for those who survived.
However, this incident — like several others across the country — is now being exploited by some to promote a dangerous narrative that seeks to reverse years of positive criminal justice reform.
A week before the Waukesha tragedy, a prosecutor in the office of Milwaukee District Attorney John Chisholm requested that the man accused of driving the SUV be held on a relatively low bond. The man committed the murders in Waukesha just days after he posted that bond.
As a result, this terrible crime has been twisted by some to paint Chisholm[1] and other reform-minded prosecutors as neglecting their duty to keep communities safe.
Nothing could be further from the truth.
Chisholm has utilized diversion[2] programs to keep people at lower risk of committing crimes out of the criminal justice system, and, like a growing number of prosecutors, he has made data[3] about his prosecutions more transparent — precisely so his office can be held accountable for its actions.
Regarding the Waukesha parade suspect, Chisholm's office stated that the prosecutor's decision to only request $1,000 in bail was inconsistent with the accused's risk assessment.
It appears the decision may have been the result of an inexperienced junior prosecutor confronted with a massive case backlog created by the pandemic.[4]
If that is the case, Chisholm's office must conduct the internal review it has promised and ensure similar mistakes are not made again.
But more critically, communities and their leaders must not use this tragedy to turn their backs on criminal justice reform.
In the past 10 years, the country has seen a wave of change in prosecution that accelerated after the murder of George Floyd. These reforms in prosecutors' offices include relying less on incarceration, as well as declining to prosecute[5] low-level offenses that criminalize poverty, mental illness or substance use disorders.
Because these prosecutors' approaches are relatively new, there is limited data to show the results. However, existing evidence is promising.
A Suffolk County, Massachusetts, study released in March[6] demonstrated that a decision not to prosecute certain nonviolent misdemeanor offenses decreased the likelihood of future criminal justice involvement.
Months later, a Johns Hopkins University study[7] revealed that the the Baltimore City state's attorney's policy not to prosecute low-level offenses, such as drug possession and prostitution, was not associated with a greater threat to public safety.
With regard to bail reform, which has received significant criticism in light of rising violent crime, a study released in 2020 demonstrated that New York City's supervised release program,[8] in which certain individuals are released with supervisory conditions after their arrest rather than held on bail, did not lead to a substantial or statistically significant increase in new arrests.
Moreover, putting aside the decisions of prosecutors, the Pew Charitable Trusts found in a 2012 report that a significant portion of nonviolent prison populations in Florida, Maryland and Michigan could have been released sooner with no impact on public safety.[9]
And let's not forget why these reforms are being implemented all over the country, in conservative and progressive communities, both big and small. Prosecutors, including myself, have seen with their own eyes that the traditional approach to crime — namely, long periods of incarceration — are often ineffective and even counterproductive.
Any honest prosecutor will tell you that the same people tend to get arrested over and over again, often for petty crimes, and that the system rarely does anything to address the root of the problem.
But data and evidence also prove the severe limits of our criminal justice system, given that the vast majority of those in prison will be eventually released.
Study after study demonstrates that incarceration has severe economic repercussions on those released from prison;[10] restricts a released person's ability to find adequate housing;[11] and can have lasting economic, psychological and social effects on the children[12] of people behind bars.
In other words, our overly punitive criminal justice system has failed to rehabilitate people who commit crimes, and instead churns out people relegated to second-class citizenry.
Those pushing for a highly punitive model of criminal justice often complain that reformers ignore the pain and suffering of victims.
However, the victims I met as a prosecutor on a daily basis for years were often reluctant to participate in a prosecution because they did not want their perpetrator to serve time. Instead, they wanted the system to help the accused so that he or she would not hurt anyone again.
Again, the evidence supports the notion that victims are not a monolith, and do not universally wish to see their perpetrators behind bars for years on end.
A 2019 survey by the Alliance for Safety and Justice found that by a margin of 2-to-1, "victims prefer that the criminal justice system focus more on rehabilitating people who commit crimes than punishing them."[13]
That same survey found that more than half of victims prefer their communities to spend more resources on prevention and rehabilitation than long prison sentences.
What happened in Waukesha was tragic. But we must not allow knee-jerk reactions to roll back long-overdue reforms.
Instead, we need lawmakers, prosecutors and others to continue to use data and evidence to stand firm and make changes to the criminal justice system that protect, not harm, the communities they serve.
Alissa Marque Heydari is deputy director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice and a former New York County prosecutor.
Disclosure: Chisholm sits on the advisory board of the Institute for Innovation in Prosecution.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://patch.com/wisconsin/waukesha/wi-lawmakers-ask-evers-remove-da-chisholm.
[2] https://www.vera.org/unlocking-the-black-box-of-prosecution/for-prosecutors/7-critical-decision-points/diversion1.
[3] https://data.mkedao.com/.
[4] https://www.nytimes.com/2021/11/25/us/waukesha-wisconsin-brooks-bail.html.
[5] https://brooklyneagle.com/articles/2019/02/20/brooklyn-da-prosecution-of-low-level-marijuana-cases-down-98-percent/; https://theappeal.org/the-pandemic-prompted-marilyn-mosby-to-stop-prosecuting-low-level-crimes-will-other-d-a-s-follow/.
[6] https://www.nber.org/papers/w28600.
[7] https://publichealth.jhu.edu/sites/default/files/2021-10/prosecutorial-policy-evaluation-report-20211019.pdf.
[8] https://www.mdrc.org/sites/default/files/Supervised_Release_Final_Report_ES.pdf.
[9] https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/prisontimeservedpdf.pdf.
[10] https://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf.
[11] https://www.usccr.gov/files/pubs/2019/06-13-Collateral-Consequences.pdf.
[12] https://www.ojp.gov/pdffiles1/nij/250349.pdf.
[13] https://allianceforsafetyandjustice.org/wp-content/uploads/2019/04/201904-ASJ-Texas-Report-Full-FINAL.pdf.