In Dover, Delaware, lawmakers gave the green light to a proposed constitutional amendment on Sunday. The amendment would allow for the detention of criminal defendants, excluding those accused of murder, without bail. The House approved the measure with a 32-8 vote following unanimous support from the Senate last month. To become law, the proposed amendment must now receive two-thirds approval from both chambers in the upcoming General Assembly.
The House also granted final authorization for related legislation that outlines specific felony offenses where a court could refuse bail under certain conditions. These conditions include cases where there is a strong chance of conviction based on compelling evidence or when there is clear and convincing proof that pretrial detention is the only way to ensure the defendant’s appearance in court and the safety of others or the community.
Advocates of the measures believe they strike a balance between the rights of criminal defendants and the importance of safeguarding public safety. These initiatives aim to transition Delaware away from a cash bail system. Previously, crimes like manslaughter, rape, robbery, burglary, and armed assaults fell under the definition of offenses where bail could be withheld, but that scope has now been limited to murder. This change means defendants facing charges for violent crimes other than murder could encounter unaffordable bail if deemed a flight risk or a danger to the public.
In 2021, a bill was passed requiring individuals accused of serious crimes to post cash bail for release before trial. This legislation established cash bail as the benchmark for judges determining pretrial release conditions for defendants facing 38 specified offenses, including severe violent crimes, certain gun offenses, assaults, sexual crimes, and domestic violence charges.
Previously, cash bail was only presumed as standard for defendants charged with violent felonies involving firearms or those facing violent felony charges while on probation or pretrial release for prior offenses. Critics of the 2021 law, including some progressive Democrats, argued that cash bail regulations disproportionately impact low-income and minority defendants. They viewed the legislation as a setback in Delaware’s bail reform progress. However, supporters clarified that the law served as a temporary measure to enhance public safety until the constitutional amendment allowing for the withholding of bail beyond murder charges is enacted.
