Del. lawmakers advance legislation to reform state’s bail system

DELAWARE – Delaware lawmaker are aiming to reform the state’s bail system, in the name of equity and public safety. However, opponents to the legislation argue that the rules legislators are considering pave the way for mass incarceration in the First State.

Bail Reform Bills

Those changes would come only with the passage of Senate Substitute for Senate Bill 11, which would pave the way for an amendment to Delaware’s constitution.

Bill sponsor and Senate Majority Leader, Senator Bryan Townsend, says lawmakers have already worked to ensure that low-level offenders had the opportunity to make bail. This year’s legislation, is the next step, he says; the goal is to ensure that people deemed as a risk to the community cannot be released from jail before trial.

“You shouldn’t use bail as a toll to hold them, because that would mean that a poor dangerous person would be held, because they can’t make bail, but a wealthy dangerous person, or a member of a cartel, who is a dangerous person could make bail and get out,” Sen. Townsend said. “It shouldn’t be about whether you have money or not. It should be about whether you’re a risk to the community.”

Senate Bill 12 with Senate amendment 1, meanwhile, would allow lawmakers to identify while types of felony offenses would make an individual ineligible for bail.

Judges would still be able to use their own discretion in each case, says Sen. Townsend.

“They could use bail as a tool, both case and non-monetary, to try to make sure that people attend their court hearings and are not a risk to the community while they’re out,” Sen. Townsend said.

The legislation would also give defendants a pre-trial detention hearing, within ten days of their arrest.

“There are really good procedural protections on this legislation, and funding ultimately for defense counsel,” Sen. Townsend said. “We, frankly, have not heard many examples at all of this system being abused, to the point where people who are not dangerous are being detained with bail.”

Concerns With Changes

However, that’s exactly what opponents of the bill say they’re concerned about.

Jeff Clayton, Executive Director of the American Bail Coalition, believes that the bills go too far, and step on individuals’ rights. He worries that non-violent offenses, like felony theft for example, will get lumped in with crimes like assault, or even murder.

“It’s a significant transfer of state power over individuals to define bail. It’s giving legislature the power to define and detain anyone who’s committed a felony crime in Delaware,” Clayton said. “Admittedly, they haven’t gone that far yet, but in the federal system that they’re copying, it is a march towards mass incarceration. They will always err on the side of denying bail.”

In other states that have already adopted similar measures, like New Jersey, Clayton says that theory is being proven. “It’s ending up over half of all felonies, the prosecutors are seeking detention,” he said.

Clayton is calling for “more of a hybrid system.”

“The government has mass incarcerated people, it has misused DNA evidence over the years, the government has wrongfully convicted people,” Clayton said. “We just don’t trust it.”

“Bail system has inherent flaws,”

However, lawmakers argue that’s not what they’re aiming for in the First State. Rep. Nnamdi Chukwuocha, who will be pushing the legislation now that it’s been unanimously passed by the Senate, says transparency is the goal.

“It’s just about equity and common sense,” Rep. Chukwuocha said. “We think about our state constitution and some things that need to be changed. This is definitely one of those things.”

Rep. Chukwuocha doesn’t foresee much opposition in the House, but has message for other lawmakers in that process:

“The bail system has inherent flaws,” Rep. Chukwuocha said. “The fact that someone rich, regardless of how dangerous they are can get out of prison, and someone who is just as dangerous, but they don’t have money, is being locked up is just not answering the call that we’re seeking in our society to be a safer nation.”

Fiscal Note, Looking Ahead

There is a fiscal note attached to the legislation. However, Sen. Townsend explains that it will not go into effect for some time. This effort is just the first leg of the required constitutional amendment, he says.

“Next January or March, the legislature would then pass the second leg of the constitutional amendment, and then the new system would not go into effect for another six months after that,” Sen. Townsend said. “So, there’s no fiscal note for the coming budget year, because it’s not possible for a system to go into place in the coming budget year. It would have to be the year that follows.”

Because the bills would change the Delaware constitution, they will require two-thirds majority vote in both the Senate and House, but not during the same term. That said, if the two bills do pass during the current session, they would have to pass again, either next year, or in 2026, to become law.