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Delaware Senate Democrats

Senate passes first leg of preventative detention amendment to the Delaware Constitution

May 5, 2022

DOVER – Defendants charged with specific felony offenses identified by the Delaware General Assembly would be ineligible for bail under the first leg of a Constitutional amendment passed by the State Senate on Thursday.

The Delaware Constitution currently permits the courts to hold someone without bail only instances of “capital offenses.” When the Constitution was written that term covered offenses such as manslaughter, rape, robbery, burglary, and armed assaults, but has since been interpreted by the courts to include only capital murder. 

Senate Substitute 1 for Senate Bill 11 would clarify in the Constitution that the Legislature may identify additional crimes and circumstances when the courts can use preventative detention to protect public safety. Pre-trial detention would be permissible only if there is clear and convincing evidence that no conditions of release will reasonably assure a defendant appear in court, pose no threat to the community, and refrain from obstructing justice while on pre-trial release.

“I have helped to lead the charge to move our state away from its reliance on cash bail for low-level offenses because it was the right thing to do,” said Senate Majority Leader Bryan Townsend, the prime sponsor of SS 1 for SB 11.

“Protecting our neighbors and our communities from people accused of some of the most violent and heinous crimes is also the right thing to do, and I am proud of my colleagues in the Senate for recognizing that those values are not incompatible,” said Townsend, D-Newark/Bear. “Delaware deserves a rational justice system that is both fair to defendants and capable of protecting the community. The legislation we passed today is an important step forward in ensuring that balance.”

Delaware took its first meaningful step toward bail reform when Sen. Townsend and former Rep. J.J. Johnson passed legislation in 2018 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.

Sen. Townsend introduced a preventative detention amendment to the Delaware Constitution in 2019, along with 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. However, neither bill received a final vote after the legislative session was interrupted by the COVID-19 pandemic.

Senate Bill 11 was first introduced by Sen. Townsend in April 2021 and reported out of committee the following month.

Constitutional amendments must be approved by consecutive General Assemblies, meaning the amendment proposed by SS 1 to SB 11 would not take effect until approved again by the General Assembly.

In the interim, Sen. Spiros Mantzavinos, Sen. Stephanie Hansen, Sen. Townsend, House Majority Leader Valerie Longhurst and Rep. Nnamdi Chukwuocha led the passage of Senate Substitute 1 for Senate Bill 7, which established 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.

SS 1 for SB 7 also included a sunset provision that would take effect upon enactment of SS 1 for SB 11.

“Over the next year, dedicated legislators will begin work on legislation that will set out exactly which felonies and what circumstances should preclude defendants from being able to re-enter society while they await trial,” Townsend said. “But the multi-year process of amending our state Constitution should not –and must not – wait. We can start that process now while we engage in an open and honest discussion around how this constitutional power should be deployed.”

SS 1 for SB 11 now heads to the House for consideration.

“Delaware has taken many important steps in reforming our bail process, particularly in reducing our use of cash bail for minor offenses,” said Rep. Nnamdi Chukwuocha, the House prime sponsor of SS 1 for SB 11. “However it’s vital for the safety of our communities that those in our criminal justice system maintain the discretion to implement or withhold bail for the most serious offenses. This is a long overdue step toward modernizing our criminal justice system to make it more equitable and fair for all Delawareans.”  ###