Joseph Sabino Mistick: Lessons from Waukesha

When a career criminal drove his car into the Christmas parade in Waukesha, Wis., recently, he killed six people and injured more than 60. In many places around the country, he shattered the joy of families that were just beginning to feel free to gather and celebrate as the pandemic has become more manageable.

The tragedy cut even deeper as full reports of the criminal past of the driver became available. He has a 20-year history of violence, including weapons charges. And three weeks before driving into the parade, he was arrested for domestic violence-related crimes, including running over the mother of his child with a vehicle.

He was free at the time of the killings along the parade route because he posted bail on those earlier charges, which was set at $1,000 upon the recommendation of District Attorney John Chisholm’s office. Chisholm is a progressive reform-minded prosecutor who favors low bail and has fought to eliminate mass incarceration, but even he seems to know that his office failed the people of Waukesha this time.

Here is what he said after the tragedy: “The bail recommendation in this case is not consistent with the approach of the Milwaukee County District Attorney’s Office toward matters involving violent crime, nor was it consistent with the risk assessment of the defendant prior to setting of bail.” Bureaucratese at best.

But at least he did promise an internal investigation. Nonetheless, six people are dead who shouldn’t be, and he will eventually have to answer for his office’s mistake. Meanwhile, reform-minded prosecutors in other parts of the country — already being challenged — are now easier targets.

The Waukesha tragedy was quickly embraced and used by the far right to scorn and discredit all proposals for criminal justice reform. And the far left has posed just as serious a threat to reform with extreme proposals and stupid slogans like “defund the police.” It is left to serious conservatives and liberals to keep working for reform, and thankfully that continues to happen around the country.

But Waukesha must not be forgotten, because there are two things going on here. Prosecutors must keep one foot on the brake — stopping excessive and unwarranted bail, identifying and punishing discriminatory policing, and rooting out discovery violations that hide exculpatory evidence from judges and juries. Good prosecutors do this naturally.

And Waukesha is also a lesson for reform prosecutors to keep one foot on the gas at the same time they are introducing institutional reforms. They must never let their zeal for reform distract them from the day-to-day justice that keeps us safe from evildoers like the Waukesha killer.

There are many reasons to lose heart in the fight for broader justice, and the news seems to give us a new one every week. But look to Georgia if you need a boost. There, a jury consisting of one Black man and 11 white men and women recently convicted three white men of murdering Ahmaud Arbery, a 25-year-old Black man who was guilty of jogging.

These are hard issues to keep in balance — staying tough on real criminals while seeking reform — but we can take the right path.