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A bill to amend the Delaware Constitution and end the state’s reliance on cash bail died in the Senate late Wednesday, bringing to a halt a yearslong reform effort that had brought together police, corrections officers and the judiciary.
The 11-8 vote Wednesday evening left supporters three votes shy of the 14-vote supermajority needed to advance the legislation to the Delaware House of Representatives. One senator was absent, and state Sen. Anthony Delcollo, R-Elsmere, did not vote on the measure.
In Delaware, constitutional amendments must clear two consecutive legislatures by a two-thirds majority, meaning that the reforms pushed this session could not go into effect until 2021, at the earliest.
Senate Bill 221, sponsored by Sen. Bryan Townsend, D-Newark, would have amended the state constitution to expand the range of violent crimes for which pretrial release was unavailable. Meanwhile, a related measure, SB 222, sought to create the presumption that most defendants will be released before trial with nonmonetary conditions.
Both bills were introduced this year as part of a legislative package that would have moved Delaware toward the ultimate goal of eliminating its cash bail system. SB 222 was removed from the agenda after the constitutional amendment failed.
Townsend, who sounded shaken after the roll call, initially said there was “no explanation” for the outcome, but then changed course, saying “Well, there’s plenty of explanations, I guess.”
The vote was monitored via a live audio stream posted to the General Assembly’s website.
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 cash bail, arguing that the current system disproportionately impacts the poor while failing to improve public safety.
Police and corrections officers unions had thrown their support behind the reform package, and both the Attorney General’s Office and members of the Delaware Judiciary had supported the legislation.
Delaware’s bail bond industry, however, had been outspoken in its opposition, and some lawmakers have expressed concerns about the effect of the legislation, as well as its impact on public safety.
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 aimed to expand that list to include other felonies “where the evidentiary proof is clear and convincing.”
SB 222, meanwhile, would have set the presumption of release in nearly all cases. While it wouldn’t have technically eliminated cash bail, it would have required 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, Kate Parker West said.
SB 222 had also aimed to 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.
Lawmakers voiced no objections to the legislation and posed few questions Wednesday afternoon to three witnesses called to testify on behalf of the two bills.
Captain Peter Sawyer of the Delaware State Police praised the “collaborative nature” of the process that produced the legislation, saying “everybody was at the table, and everybody had input.”
R.L. Hughes, Georgetown police chief, called the package a “step in the right direction,” and Justice of the Peace Court Chief Magistrate Alan Davis said the measures would have brought Delaware in line with federal standards, which have been adopted in other states.
The legislation was “necessary to enable us to use a tool that the entire federal judiciary has and 30 other jurisdictions” have adopted, Davis said.
