This piece was first published in the Milwaukee Journal Sentinel.

The Waukesha Christmas Parade murders remind us of the continuous judgments made by district attorneys, court commissioners, and judges as they decide whether and on what terms to release those accused of crimes. As a follow-on to Craig Johnson’s important commentary (“Darrell Brooks Jr. case was a tragic mistake but the county’s risk assessment worked,” Dec. 5), it is worth taking account of the insights from decision-making science as we consider what we can do to improve the bail process.

Nobel Laureate Daniel Kahneman and his colleague, Amor Tversky, laid the foundation for the decision-making field, challenging the idea that human beings are motivated to — and do — routinely make rational, logical decisions. Kahneman’s latest book, “Noise: A Flaw in Human Judgment,” describes multiple examples of unknowing variability in expert judgments across professions and businesses. Kahneman’s goal, which applies fully to bail decisions, is to highlight judgment processes that produce the best outcomes.

We take for granted that experienced decision-makers would look at the same set of facts and come up with judgments within a narrow range. Not so much. Instead, studies show significant differences among judges in sentencing, physicians making diagnoses, underwriters setting insurance premiums, and adjusters settling claims. And especially when considering judgments controlling one’s liberty the variables will surprise you.

For example, a study of parole decisions in Israel showed the key factor on whether parole was granted was the time of day the judges considered the application (early morning or after lunch was best). A study of 1.5 million decisions over three decades found federal judges are more severe on days that follow a loss by their local NFL team.  Another study of thousands of juvenile court decisions in Louisiana found sentences given to black defendants increased by 8% after an unexpected loss by the LSU football team. The effect of losses on sentencing was largest for judges who got their undergraduate degrees from LSU.

So what to do about bail-setting in Wisconsin? The answer lies in improving the decision-making process surrounding bail to reduce the likelihood of individual error. Judgment and intuition must be grounded in evidence, and existing tools that can guide bail judgments should be used and expanded.

Kahneman teaches how complex judgments can be broken down into discrete parts, with data gathered about each. Models can be built that forecast outcomes based on identified variables and then experience used to validate and improve the model.  Judgment and intuition still come into play, but ideally only after evidence is gathered and assessed so as to minimize confirmation bias.

Excellent reporting by the Journal Sentinel, shows tools are available to improve bail decision-making. Milwaukee police already gather data for a lethality assessment, using an 11-question form aimed at predicting domestic abuse escalation. Arizona has been using this tool since 2015 when setting bail in domestic violence cases, and Wisconsin should also. Another existing tool is Milwaukee’s Public Safety Assessment, or PSA, which aggregates scores reflecting the likelihood to appear in court and to engage in criminal activity. The report is prepared by an outside agency and made available in advance of bail decisions. 

Some veteran criminal defense lawyers, however, report the PSA often does not play a material role in setting bail. In this instance, the PSA was not available to or read by the assistant district attorney who recommended $1,000 cash bail. She may have believed she was being careful in doubling the prior $500 bail but might not have known this amount had been lowered from $7,500 when a mandated trial date was delayed. The court commissioner who adopted the $1,000 recommendation has not commented on whether he reviewed the PSA before setting bail. He has been reassigned to noncriminal matters.

Decision-making science instructs we make more consistent and better judgments when we decide what data we need, gather it, assess it, and then make use of it when we apply judgment and intuition. We have some pieces of the puzzle available — the lethality assessment and PSA — with the latter already supposed to be part of bail decisions. And we should change state laws that control bail decisions while preserving constitutional rights. Finally, we must address resource constraints in our criminal justice system that lead to Brooks’ release. The police, district attorneys, public defenders, and courts constantly face limits that impair the fair implementation of justice. Recall it was an inability to provide a required speedy trial that led to Brooks’ $500 bail last spring.

In sum, let’s respond to the Waukesha Parade murders by working together to improve bail decisions in a thoughtful, bipartisan way in accord with constitutional rights and decision-making science. Calling for impeachment and tweeting about firings will not make our state safer or more just.

Photo of Ralph Weber Ralph Weber

During a distinguished career as a trial lawyer, I tried dozens of complex, multi-week trials, earning peer recognition from The American College of Trial Lawyers, Chambers Guide, Best Lawyers, and more.  I taught Trial Advocacy for 25 years to Marquette University Law School

During a distinguished career as a trial lawyer, I tried dozens of complex, multi-week trials, earning peer recognition from The American College of Trial Lawyers, Chambers Guide, Best Lawyers, and more.  I taught Trial Advocacy for 25 years to Marquette University Law School students.  I created the Trial Science Institute, a facility for studying how jurors and judges respond to disputed cases. And I helped found a nationally renowned trial law boutique, Gass Weber Mullins llc.

At the same time, I have been a trusted advisor to senior corporate and nonprofit leaders through work on multiple boards. I currently chair the HR and Governance Committee for a Fortune 100 company, serve on the national and local boards of a network of public charter schools, and serve on the board of a large privately held company. A trial lawyer’s ability to ask the right questions — and to pursue follow up questions as needed– brings to the boardroom an element that helps improve group decision-making.  Indeed, work I have done to improve jury decision-making is also applicable to decision-making by boards of directors.

I now am launching a new venture that emphasizes these skills of advocacy and advising. 

For Trial Lawyers, I will provide collaborative, strategic consulting to help assess their cases and create effective trial narratives. In addition, I will serve as a mediator and arbitrator for cases that can be resolved without going through the courts.

For Company Counsel, I will take on special projects when an experienced, independent perspective will help.  I will likewise assist when a second opinion on major litigation can assist both company and outside counsel.

At the same time, I will continue my research and writing about improving group decision-making.