DOVER – The Delaware State Senate on Thursday passed legislation that would prevent defendants accused of dangerous and violent offenses from being released without bail before their scheduled trials.
Co-sponsored by Sen. Spiros Mantzavinos, Sen. Stephanie Hansen, Senator Majority Leader Bryan Townsend and nearly a dozen legislators from both chambers and both political parties, Senate Substitute 1 for Senate Bill 7 would establish secured cash bail as the baseline used by the courts to determine the conditions of pre-trial release for people accused of 38 serious offenses, including certain gun crimes, assault charges, rape, sex crimes against children and Class A felonies.
“This bill is a common-sense policy that will protect our communities from violence without infringing on the vital reforms we have undertaken to eliminate Delaware’s reliance on cash bail,” said Sen. Mantzavinos, D-Elsmere.
“I believe we can keep defendants accused of some of the most violent and heinous crimes behind bars as they await trial, while also preventing people charged with low-level offenses from languishing in prison based solely on how much money they have in their pockets,” he said. “I am grateful to my colleagues in the Senate who proved today that we can strike a delicate balance between a defendant’s presumption of innocence and the safety of our neighbors.”
Delaware took its first meaningful step toward bail reform in 2018 when former Rep. J.J. Johnson and Sen.Townsend passed legislation that encouraged judges to first consider pre-trial release conditions before setting cash bail. At the time, more than 700 people were being held in jail solely because they could not pay bail, despite bail amounts as low as $5,000 or less in many cases.
In 2019, Sen. Townsend attempted additional work on the issue by introducing an amendment to the Delaware Constitution and a companion bill that would have further moved the First State from a cash bail system, while critically retaining the discretion of judges to continue imposing cash bail if they could show such steps were required to protect public safety. Neither bill received a final vote, however, when the legislative session was interrupted by the COVID-19 pandemic.
Senate Bill 11, sponsored by Sen. Townsend in April, is the first leg of a preventative detention amendment to the Delaware Constitution that would allow bail to be withheld entirely for cases involving those same offenses if there is clear and convincing evidence that a defendant presents a danger to public safety or no other condition will assure their appearance in court. Currently, the Delaware Constitution only permits bail to be withheld in capital murder cases.
SB 11 was reported out of the Senate Executive Committee on May 13 and is currently awaiting a final vote on the Senate floor.
Constitutional amendments must be approved by consecutive General Assemblies, meaning that law could not take effect until 2023 at the earliest. SB 7 would make progress on bail reform as the Legislature considers SB 11 in the coming years.
“The people of Delaware should not be asked to sit idly by for the three years it will take to amend our Constitution,” said Sen. Hansen, the co-prime Senate sponsor of both SB 11 and SS 1 for SB 7. “The Senate today took a crucial step toward simplifying the rules around our bail system and ensuring preventative detention is being used to protect Delawareans while upholding the presumption of innocence enshrined in the U.S. Constitution.”
SS 1 for SB 7 includes a sunset provision that would take effect upon enactment of SB 11.
The legislation also explicitly retains the discretion of the courts to set minimal cash bail based on the facts of each individual case and the flight risk posed by each defendant. The legislation further requires an automatic secondary bail review hearing in Delaware Superior Court for defendants charged with the serious offenses spelled out by SS 1 for SB 7.
An amendment sponsored by Sen. Hansen and passed by the Senate on Thursday also would require defendants released on bail for any of the crimes listed in SS 1 for SB 7 to forfeit any firearms in their possession.
“We have seen time and again how individuals under extreme duress with ready access to firearms can cause devastating violence,” Hansen said. “Protecting our communities from violent defendants needs to be about more than setting cash bail. We also need to remove firearms from the equation until their criminal cases have been adjudicated.”
SS 1 for SB 7 now heads to the House for consideration.
“I’m proud of the work we’ve done to reform and modernize Delaware’s bail system, but part of our ongoing effort is to ensure that the system is working to keep all residents safe,” said House Majority Leader Valerie Longhurst, the lead House sponsor of SB 7. “While people are innocent until proven guilty, not all offenses are equal. We have a responsibility to protect residents when there are serious, violent crimes committed. I believe this bill builds on our earlier efforts at bail reform and strikes a balance between nonviolent and violent crimes.”
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