A constitutional amendment to expand the circumstances under which a court may detain someone pretrial without bail is before state lawmakers this month.
State Sen. Bryan Townsend (D-Newark/Bear) says his proposal would provide balance to the larger effort to move Delaware away from a cash bail system, which he argues prioritizes a defendant’s ability to pay over public safety.
The legislature passed reforms in 2018 intended to reduce the number of people held in pre-trial detention solely because they could not afford bail. It encouraged judges to consider other, non-monetary conditions for release for people charged with low-level offenses. At the time, Townsend says that more than 700 people were in custody in Delaware solely because they could not afford to pay bail; Delaware's incarcerated population has shrunk since 2018, which he partially credits to earlier bail reform efforts.
Townsend’s current bill approaches the issue from a different angle. He argues holding people based on their ability to afford bail, instead of the seriousness of charges and the likelihood they will commit a new crime or go on the run, is a mistake.
“Not only does that represent a lack of focus on the fundamental question, which is whether you’re a risk or not," he said, "but it also piles on additional economic inequities in the system.”
Because constitutional amendments need to pass in two consecutive sessions, Townsend says lawmakers will have a chance to work out other details, including how much time the state will give prosecutors to meet the burden of proof needed to hold a defendant in pretrial detention without bail. It will also give lawmakers a chance to decide which charges would possibly render a defendant ineligible for cash bail — a responsibility the constitutional amendment would give to the legislature. The most likely candidates, Townsend said, are 38 felonies, including rape and assault, listed in a previous bill that set cash bail as the baseline condition for release for many serious offenses. That bill, which the legislature passed last year, would sunset if lawmakers pass the constitutional amendment.
But some civil liberties advocates say that giving lawmakers the authority to define which charges could render someone ineligible for bail.
"It is an incredible risk to allow legislators to define charges ineligible for bail because it is unknown what litmus test legislators will use: is it based on physical harm, or public safety risk?" asked Javonne Rich, the Advocacy and Policy Director for the ACLU of Delaware. "Down the line, the charges not eligible for bail could become rather lengthy, and include charges with no actual relation to public and victim safety concerns."
Rich also noted that the legislature will have a chance to do more to protect defendants' due process rights, including establishing an appeals process for those denied bail.
The bill passed unanimously in the Senate last week; it is scheduled for a House committee hearing this month.
