Delaware lawmakers approve first leg of constitutional amendment to reform bail system

DOVER, Del. (AP) — Delaware lawmakers on Sunday approved a proposed constitutional amendment under which criminal defendants other than those charged with murder could be held without bail.

The measure cleared the House on a 32-8 vote after passing the Senate unanimously last month. It is the first leg of a constitutional amendment that must also receive two-thirds approval by both chambers in the next General Assembly.

House members also gave final approval to companion legislation listing certain felony offenses for which a court could deny bail under certain circumstances, including when there is a fair likelihood of conviction because “the proof is positive or the presumption great.” There also would have to be “clear and convincing” proof that no conditions other than pretrial detention could reasonably assure the offender’s appearance in court when required and the safety of any other person or the community.

Supporters say the measures are aimed at balancing the rights of criminal defendants with the need to protect public safety while moving Delaware away from a cash bail system.

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At one time, the definition of a “capital offense” for which bail could be withheld under Delaware’s constitution included crimes such as manslaughter, rape, robbery, burglary and armed assaults. That definition has since been narrowed to murder. That means a defendant who is charged with a violent crime other than murder and is thought to pose a flight risk or public safety threat might face bail so high that it can’t be paid.

In 2021, lawmakers passed a bill requiring more people charged with serious crimes to pay cash bail in order to be released from custody pending trial. That bill established secured cash bail as the baseline to be used by judges in determining pretrial release conditions for defendants charged with any of 38 specified offenses. They include the most serious violent felonies, as well as certain gun crimes, assaults, sex crimes and domestic violence offenses.

Under a previous law, the presumption of cash bail as the standard for pretrial bond conditions applied only to defendants charged with committing violent felonies involving firearms, and to defendants charged with committing violent felonies while on probation or pretrial release for a previous criminal charge.

Opponents of the 2021 legislation, including several progressive Democrats, argued that cash bail requirements disproportionately affect low-income and minority defendants, and that the legislation was a step backward in Delaware’s bail reform efforts. Supporters said the bill was only an interim measure to protect public safety until enactment of the constitutional amendment allowing bail to be withheld entirely for crimes other than murder.