Bail Reform in Delaware

The Need for Reform

Hundreds of people incarcerated in Delaware’s prison system have not been convicted of a crime.  People may be incarcerated to insure that they show up for their trail, and that they don’t commit additional offences while awaiting trial.

In theory, people in our society are innocent until proven guilty.  Our state constitution grants Delaware citizens the right to freedom prior to trial and conviction.  However, this right is premised on the payment of a bail bond.

Delaware is a “forthwith” state where police officers bring people to a Justice of the Peace shortly following arrest.  Charges are presented and the defendant enters a plea of “guilty” or “not guilty”.  Defendants are rarely represented by an attorney, and the State is represented by a police officer.  To support this process, Justices of the Peace are available 24 hours a day.

The judge decides whether to require a payment of bail and how much bail will be required.   About 60% of defendants are released prior to trial with no payment of bail.  The remaining 40% are required to make a bail payment to gain release.

Judges set low bail amounts for defendants they believe to be low risk not to appear or to reoffend.  They set larger bail amounts for higher risk defendants.  Judges often have limited knowledge of the defendant’s financial resources when the amount of bail is set.  In general, judges assume that defendants with low bail amounts will be released, and those with high bail will be incarcerated.

However, these assumptions are often wrong.  Many people are incarcerated for long periods of time because they are unable to pay even small amounts of bail, and defendants who judges believe are dangerous are able to buy their freedom.

Money Bail Produces Poor Outcomes

The money bail system produces poor outcomes in terms of pre-trial justice, sorting human freedom based on the ability to pay.  Delaware prisons are among the most crowded in the nation, and one reason is the detention of low risk defendants who can’t afford to pay even small amounts of bail.  On the other hand, our communities are unprotected from potentially dangerous people who have the financial resources to pay for their release.

More and more states, cities and counties are recognizing the illogical and inequitable results of money bail and are reforming and modernizing the pre-trial justice system.  They are passing laws reducing or eliminating the use of money bail and empowering judges to hold or release defendants based on objective factors related to their charges, criminal records and life circumstances.

The most controversial element of these “bail reforms” is “pre-trial detention” under which judges have the power to incarcerate defendants accused of serious crimes who are determined to be a danger to the community based on the factors listed above.

“Pre-trial detention” violates the presumption of innocence until proven guilty.  However, in other jurisdictions reform has greatly reduced the number of people detained prior to trial.  Only a small percentage, often less than 10%, of defendants, are dangerous or flight risks.  The goal is to incarcerate the smallest possible number while protecting the community.

Studies have documented that even relatively short periods of incarceration greatly increase the risk of future offences.  Jobs and relationships are disrupted. People in jail have limited ability to prepare a defense and often agree to a plea bargain resulting in a criminal record.  Their options for an honest livelihood are severely reduced.  Pre-trial incarceration is an incubator for increased crime rates.

Time for Reform in Delaware

The 2018 legislative session passed HB 204 which lays the foundation for bail reform by mandating an evidence based assessment tool, requiring prompt review for incarcerated defendants, and strengthening pre-trial services.

During the 150th session of the General Assembly a proposed Constitutional Amendment will be introduced giving judges the power to order pre-trial detention.  Passage in two sessions of the General Assembly is required for a Constitutional Amendment to become law.  This legislation will enable Delaware to virtually eliminate money bail.

Cash bail has created debtor’s prisons in Delaware.  The bail bond industry will finance strong opposition to these proposed reforms based on the fallacy that money bail contributes to public safety.  Achieving pre-trial justice will require vigorous ongoing advocacy by concerned citizens demanding action from their elected representatives.  Now is the time for Delaware to join the growing ranks of states which have reformed the illogical and unjust system of money bail.