Lawmakers in Dover are considering a legislative package to amend the Delaware Constitution and end the state’s reliance on cash bail, as a looming end-of-session deadline threatens to delay the reforms.
A Senate committee on Wednesday advanced two complementary measures that would build on a yearslong effort to eliminate cash bail in the First State. One, Senate Bill 222, would create the presumption that most defendants will be released before trial with nonmonetary conditions, instead of having to post bail. The other, Senate Bill 221, would amend the state constitution to expand the range of violent crimes for which pretrial release is unavailable.
Both bills were originally placed on the agenda for Thursday but were later pulled in the wake of questions from lawmakers.
A debate and vote in the Senate could come as early as Wednesday; however, the current General Assembly is careening toward its close on June 30, leaving lawmakers just two weeks to act before the legislative slate is wiped clean.
“The timing’s huge,” said Kate Parker West of the Delaware Center for Justice.
“It’s absolutely urgent that we pass Senate Bill 221″ this session, she said.
Constitutional amendments must clear two consecutive legislatures by a two-thirds majority. If lawmakers fail to approve the first leg this session, the constitutional amendment bill will need to be reintroduced when the 150th General Assembly convenes next January and then passed again two years later, meaning the reforms would not go into effect until 2021 at the earliest.
Delaware’s pretrial holding system has been the focus of reform efforts since 2014, including two commissions tasked with finding alternatives to cash bail. The Center for Justice, headed by Ashley Biden, has committed itself to eradicating bail, arguing that the current system disproportionately impacts the poor while failing to improve public safety.
“Pretrial justice is not limited to simply bail reform, but also encompasses several crucial ‘front-end’ components of our criminal justice system including, but not limited to, upholding the presumption of innocence, the increased use of citations over arrest, the presence of defense counsel at the earliest hearing at which one may be detained, and the early review of charges by a seasoned prosecutor,” the group said on its website.
In January, the General Assembly passed a bill to give judges more discretion in deciding whether to impose cash bail. That legislation, which was signed into law by Gov. John Carney, laid the groundwork for moving the state from a cash-based detention system to a risk-based analysis system that encourages judges to first consider other conditions for pretrial release, such as monitoring and travel restrictions.
Currently, the Delaware Constitution mandates that capital murder is the only charge for which a defendant can be denied bail. But SB 221 aims to expand that list to include other felonies “where the evidentiary proof is clear and convincing.”
The changes would not take effect until the General Assembly passes SB 222 to detail the circumstances and procedures under which detention without bail may occur.
“With this change, though, Delaware can move forward toward the type of modern bail system that has been increasingly adopted by our sister states, through amendment of their state constitutions, when needed, and the development of statutory procedures that provide, in extreme cases, pretrial detention without bail,” according to the synopsis of SB 221.
SB 222, meanwhile, would set the presumption of release in nearly all cases. While it wouldn’t technically eliminate cash bail, it would require judges to first look to the least-restrictive nonfinancial conditions for a defendant’s pretrial release. The new standard would be whether the accused has a history of failing to appear for court, rather than predicting whether they pose a threat to public safety, West said.
SB 222 would also establish mechanisms for transparency, as well as due process protections for those who are detained ahead of trial, including the right to counsel and a quick trial. The new system would also be subject to an annual review process detailing rates of detention and the average length of pretrial stays.
“That helps defendants, but it also helps the transparency system,” West said.
“It’s an extra level of protection that defendants don’t have right now.”
Unlike the constitutional amendment, SB 222 requires only a simple majority to pass the General Assembly, and it would not have to be approved by the next legislature.
The legislative package has gained wide support from the judiciary, the attorney general, law enforcement, corrections officers and the Delaware American Civil Liberties Union.
However, there has been push back from some lawmakers over its impact on public safety, and it’s not yet clear whether supporters of SB 221 have the votes needed to meet the two-thirds threshold in the General Assembly.
The decision to pull the bill from Thursday’s agenda also narrows an already-tight window for passage. If the Senate were to approve the constitutional amendment next week, the state House of Representatives would then have about a week to move the legislation through committee and hold a vote before the full chamber.
Failure to pass the first leg of the constitutional amendment, West said, would essentially send supporters back to the drawing board after more than three years of intense policy work and delayed reform of “one of the greatest civil rights challenges” the state is currently facing.
“I really don’t have a backup plan,” she said.