The House Administration Committee advances a bipartisan bill to alter Delaware’s pretrial detention system, but not without concerns from legislative leadership.
Sen. Majority Leader Bryan Townsend’s (D-Newark) bail modernization constitutional amendment has now passed twice in the State Senate with unanimous support — an amendment must clear both chambers in two separate legislative sessions to become law.
But the bill did not receive the same unified support in the House last year, passing 32-8 with one abstention, and more lawmakers are asking questions.
The change would eliminate the opportunity for cash bail release for capital murder and other explicit high-level felonies with evidence that the offender would be a threat to public safety if offered conditional release, placing them in preventative detention.
Under the changes, detention-eligible defendants would be ensured counsel representation at the initial detention and subsequent hearings, and courts must hold a full preventive detention hearing within 10 days of the defendant’s arrest, where defendants have the right to testify, to present evidence and to cross-examine witnesses against them.
"The system should focus on whether someone is dangerous, not how much money they have — to focus on public safety, and not rely on a higher-level defendant's bank account size," the bill's prime House sponsor State Rep. Nnamdi Chukwuocha (D-Wilmington) said. "We need to amend the Delaware Constitution to allow for preventative detention. Right now, the Delaware Constitution guarantees a right to bail, even if a defendant is extremely dangerous."
The Delaware Office of Defense Services and Department of Justice both support the bill, agreeing a person's ability to pay should not determine if they should receive pretrial release.
House Majority Leader Kerri Evelyn Harris (D-Dover) raised some concerns around the legislation, including the potential to exacerbate racial and economic disparities, as well as make people feel pressured into a plea deal.
"I guess in any system, detaining people for long periods of time can cause them to otherwise relinquish their constitutional rights. So that's always a risk," Chief Defender at the Office of Defense Services Kevin O'Connell said. "I think what this legislation is geared toward though, is locking up the people that are the most dangerous and that we're the most afraid of, while letting those people out without any monetary bail who we're not afraid of."
The ACLU of Delaware opposes the bill, as well as State Rep. Sean Lynn (D-Dover), who argues the change would slow down trial speediness and goes against the constitutional protection of presumed innocence.
“This is un-American. We shouldn't even be considering it, especially against the backdrop of what is going on nationally, where the United States is sending people to literal concentration camps, this is what we're doing in Delaware? I urge all of you to vote against this," Rep. Lynn said during the committee hearing.
Rep. Chukwuocha did note the U.S. Supreme Court has upheld the constitutionality of preventative detention, ruling that the government's interest in protecting the community outweighs individual liberty.
Party leadership from both caucuses voted the bill out of committee unanimously, but Rep. Evelyn Harris made comments prior to the vote that she does not feel all of her questions have been answered.
“I will be voting to release. I do think that this is a conversation that should be had by people, with the space of, I'm a bit uneasy with this bill. Given our political climate right now, there are changes in our nation that I never thought would happen, and so I'm sitting and looking at a lot of legislation with a different lens than even last year when I did vote on this bill," she said.
House Minority Whip Jeff Spiegelman (R-Clayton) requested the bill not reach the House Floor until after the legislative spring break, which starts Friday and ends on May 1, to which House Speaker Melissa Minor-Brown (D-New Castle) responded, "I think there's more conversations that need to be had."
All current members of House legislative leadership voted yes on the bill last year.
If the amendment does reach the Floor, it will be the final vote needed before the changes are made to the Delaware Constitution.
The Senate Corrections and Public Safety Committee also advanced the Richard “Mouse” Smith Compassionate Release Bill, which would expand the eligibility criteria for those who qualify for compassionate release from Delaware prisons.
