DOVER – The House passed two measures on Sunday that would prevent defendants charged with certain felony offenses, who pose a clear and convincing risk to public safety, from being eligible for pre-trial release.
Sponsored by Rep. Nnamdi Chukwuocha and Sen. Bryan Townsend, Senate Substitute 1 for Senate Bill 11 is the first leg of an amendment to Delaware’s Constitution that would empower the legislature to identify certain crimes and circumstances in which the courts can use preventive detention to protect public safety.
A companion measure, Senate Bill 12, 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.
“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.
“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.”
SB 11 (S) and SB 12 build on the General Assembly’s earlier efforts to reform Delaware’s bail system. 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.
In 2021, Sen. Spiros Mantzavinos, Sen. Stephanie Hansen, Sen. Townsend, House Speaker 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.
“Thank you to my colleagues in the House for bringing fairness and common sense to Delaware’s pre-trial detention system,” Sen. Townsend said.
“Someone with wealth who poses a danger to their community should not be able to secure their freedom, while someone without those same financial means who poses zero threat remains in jail,” he said. “These bills, combined with our successful work to move Delaware away from its reliance on cash bail for low-level offenses, 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 post a danger to their community, and is never about how much money they have in their bank account.”
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.
SB 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.
SB 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 12 now heads to Governor Carney for signature.