Delaware’s current bail system is infringing on individual rights, persecuting the poor, and doesn’t prioritize public safety. But there is a solution. Delaware can change our system so people are held based on risk— not resources.
Thanks to the advocacy efforts of Delawareans across the state. But the fight is not over. A constitutional amendment and enacting legislation are needed to overhaul Delaware’s bail system.
Recently passed legislation paved the way for change by requiring:
- Mandating an empirically-developed risk assessment tool (that is, making sure people are held based on risk, not based on if they can pay bail)
- Requiring prompt review for detained defendants, so they aren’t held in prison for days, months, or years awaiting trial
- Strengthening pre-trial services to ensure that defendants appear in court
A constitution amendment will help seal the deal.
Cash bail will become a last resort. The courts will explore non-financial conditions of release, based on an evidence-based pre-trial assessment tool based on risk to public safety and not showing up to court, rather than ability to pay.
- Detainees rights would be restored through access to legal representation and immediate hearings.
- This would restore constitutional rights by requiring that the state have the burden of proof to show that an individual detained has to be held on an actual risk– not on ability to pay.
- It would also restore transparency and procedural fairness to the pre-trial justice system. For many, there would be less time waiting behind bars and more immediate hearings.
- It would re-assure public safety by making who is detained— and who is not— more predictable. For police, it could mean less arrests for people who should not have been released. For victims, it could serve as a guard against escalating violence.
- It may reduce false guilty pleas. Individuals sitting behind bars before trial are more likely to plead guilty, even when innocent. This could reduce with access to defense attorney and prompt hearings.
Who will it affect most?
- People of color. More than half of Delaware’s pre-trial population are black citizens. Black and Latino citizens spend over a week longer in jail than white people.
- Low to moderate income people. Poor people are most negatively affected by cash bail. Families living paycheck-to-paycheck sometimes cannot afford to pay even the lowest types of bail.