DOVER – Defendants charged with specific felony offenses who pose a clear and convincing risk to public safety would no longer be eligible for pre-trial release under legislation passed unanimously by the Delaware Senate on Wednesday.
“Six years ago, I 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 SB 11 (S). “Protecting our neighbors and our communities from people accused of some of the most violent 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.”
“For too long, the unjust reality of Delaware’s justice system is that someone who poses a danger to their community but has sufficient financial resources has been able to secure their freedom while someone without financial means who poses no threat remains in jail,” he said. “These bills, in combination with other legislation we have passed, will help rebalance the scales to make sure any determination about who gets held before trial and who doesn’t is based entirely on whether they pose a danger to the community.”
The first leg of an amendment to Delaware’s Constitution, Senate Substitute 1 for Senate Bill 11 would empower the Legislature to identify certain crimes and circumstances in which the courts can use preventive detention to protect public safety.
The Senate on Wednesday also unanimously passed Senate Bill 12, a companion bill that would further move Delaware away from an all-cash bail system, while critically retaining the discretion of judges to continue imposing cash bail if they could show such steps are required to protect public safety and ensure a defendant’s appearance before the court.
“Justice should be blind to your wealth, or lack thereof – but under current law, it isn’t,” Attorney General Kathy Jennings said.
“Thousands of times every year, in cases with life-or-death consequences, our Constitution requires judges to translate freedom and safety into a language of dollars and cents. It’s a clumsy artifact of a bygone era, and is unburdened by any moral ideals or evidence of success,” she said. “It is harmful to every constituency except for bail bondsmen and the mega-wealthy; it undermines reforms that keep more violent offenders, and fewer nonviolent offenders, detained; and it is enshrined in our constitution as a cornerstone of our justice system. We have to be better. I appreciate Sen. Townsend’s leadership in making that happen.”
Kevin O’Connell, the chief defender of the Office of Defense Services, said his agency is hopeful the legislation will produce the desired results.
“The Office of Defense Services has always opposed the notion that pre-trial release should be based on a person’s income,” he said. “These bills have the potential to alleviate that problem. That said, it is of the utmost importance that we have readily accessible and useful data collection so that we can be sure that the goals of this legislation are being achieved. I am confident that our partners in the General Assembly will be by our side to revisit this initiative if the net result is just that more people are getting lock up.”
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 preventive 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 once the legislative session was interrupted by the COVID-19 pandemic.
In 2021, Sen. Spiros Mantzavinos, Sen. Stephanie Hansen, Sen. Townsend, House Majority Leader Valerie Longhurst and Rep. Nnamdi Chukwuocha also led the passage of Senate Substitute 1 for Senate Bill 7. That legislation 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.
Introduced by Sen. Townsend earlier this month, SB 11 (S) and SB 12 would allow the Delaware General Assembly to set the terms and conditions under which the courts can deny bail altogether, further ensuring that people who pose a clear and convincing danger to their communities are detained while awaiting trial.
Under SB 11 (S), pre-trial detention would be permissible only if there is clear and convincing evidence that release would not reasonably ensure a defendant’s appearance in court, would not provide sufficient protections to the community, or would not prevent a defendant from obstructing justice.
Constitutional amendments must be approved by consecutive General Assemblies, meaning the amendment proposed by SB 11 would not take effect until approved by the 153rd General Assembly.
Senate Bill 12 would help to protect communities from crime in the interim. To balance those protections with due process rights of defendants, the bill would ensure that the courts hold a preventive detention hearing within 10 days of a defendant’s arrest, that defendants are represented by an attorney at those hearings and require an expedited review of the detention order by Superior Court.
If passed by the House and signed by Governor Carney, Senate Bill 12 would sunset six months after the enactment of the second leg of the Constitutional Amendment proposed by Senate Bill 11 (S), at which point the General Assembly would be able to enact new preventive detention conditions.
SB 11 and SB 12 now head 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 SB 11 (S) and SB 12. “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.”
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