Delaware bail reform bill slated for final vote Tuesday

Editor's note: An earlier version of this story incorrectly listed the date the bill would take effect. The effective date is Jan. 1, 2019.

An effort to move Delaware courts away from cash bail could be the first major piece of legislation the General Assembly sends to Gov. John Carney's desk this year.

Passed by the House last year, the bill is scheduled for a final vote in the Senate on Tuesday.

Cash bail is now one of the most common methods that Delaware judges use to ensure those charged with crimes show up for court. But Sen. Bryan Townsend, D-Newark, and other reform advocates say the practice unfairly punishes poor and often low-risk defendants.

"Locking people up simply because they didn’t have enough money to buy their freedom means we have criminalized poverty," said Townsend, a sponsor of the bill. "A fair and effective justice system is a fundamental promise we make to society, and fulfilling that promise deserves a sense of urgency."

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Under the current system, drug kingpins and other criminals with financial means are readily able to post bond and get back out on the streets, they say. But defendants without the same bankroll often feel pressured to plead guilty – or even commit other crimes – because of the impact incarceration can have on their jobs, housing and family connections.

About 59 percent of all criminal cases end with a guilty plea, according to the nonprofit Delaware Center for Justice. That rate jumps to 73 percent for cases in which a defendant is detained before trail versus 51 percent for cases in which the accused secures a pre-trial release. 

"Having anyone sit in a cell that a rich person wouldn’t share is a damning indictment of the status quo," Townsend said. "It’s hard to fathom how that system makes anyone safer or how any benefits could possibly outweigh the costs."

Commercial bail bondsmen, whose livelihood depends on the status quo, are opposed to the proposed reforms. They say House Bill 204 would put even more dangerous criminals back on the streets, create a new criminal justice bureaucracy and possibly even end up hurting the same people it seeks to help.

"This is about public safety and people being held hostage in their communities," said Bruny Mercado, owner of Bruny's Bail Bonds in Wilmington. "Some of these people are going to be released with little to no supervision and no bail. That's a get-out-of-jail card. People are going to be arresting the same people over and over again."

Jeff Horvath, executive director of the Delaware Police Chiefs' Council, said that's already happening now. 

"I've seen cases where you're left shaking your head asking how someone got bail," he said. "That's why we're willing to try this if it means people who are not a risk don't have to sit in jail and those who are a danger to society get higher bails."

A tool to reduce prison overcrowding

HB 204 would not eliminate cash bail in Delaware. Instead, the measure would encourage judges to first consider other pre-trial release conditions, such as an ankle monitor, mandatory check-ins with court officers and restrictions on travel, alcohol consumption and contact with victims.

In making those determinations, judges would be required to use a newly developed risk-assessment tool to gauge the likelihood that a defendant will violate those bail conditions or pose a risk to the public, along with a lengthy list of other considerations.

But the ultimate decision on whether to impose cash bail would be left to a judge's discretion. Capital murder would remain the only charge under which a defendant could be held without bail, as required by the state constitution.

"This would be another tool in a judge's toolbox," said Kirstin Cornnell, director of operations for DCJ. "But they would still be able to use all of the information before them in making a final decision."

Reducing the use of cash bail would also curtail the number of people in jail awaiting trial, according to reform advocates. Long an issue in Delaware, prison overcrowding has taken on urgency after a 2016 inmate uprising at James T. Vaughn Correctional Center left a correctional officer dead.

Delaware has a unified prison system, meaning defendants who cannot post bail are housed in the same prisons as the most dangerous convicted criminals.

Historically, nearly 25 percent of the state's prison population – and 40 percent of female prisoners – are awaiting trial. Nationally, 95 percent of the growth in jail populations since 2000 has been due to an increase in unconvicted defendants, according to the Bureau of Justice Statistics.

An earlier effort undertaken by the state to monitor more pre-trial defendants in their homes successfully reduced the overall prison population by 5 percent and the number of people held awaiting trial by about 15 percent, state officials say.

Lingering debate

The bail reform measure up for a vote in the Senate on Tuesday was developed by a broad coalition of government and advocacy groups, including judges, the Attorney General's Office, the Public Defender's Office, Delaware State Police and the Delaware Criminal Justice Council.

The bill sailed through the House by a vote of 38-3.

"I'm not opposed to this specific legislation, which I think does some good things," said Rep. Jeff Spiegelman, R-Clayton, who cast one of those no votes. "My concern is that this is a stepping stone to something more objectionable like getting rid of bail altogether."

Senate Minority Whip Greg Lavelle, R-Sharpley, also said supports the bill in theory but has concerns with some of its details.

"It's a bill I'd like to vote for," he said. "But I would like to see prior convictions, particularly for violent offenses, added to the list of things that judges have to consider when looking at pre-trial release."

Lavelle said he also thinks the Senate should consider adding more time before the bill takes effect to allow the risk-assessment tool prescribed for judges to be more fully vetted. The bill, as written, would take effect on Jan. 1, 2019.

Bail bondsmen, meanwhile, remain steadfast in their opposition to the legislation. Last summer, their position was endorsed by Duane Chapman – better known as the reality TV star Dog the Bounty Hunter – and his wife Beth, president of the Professional Bail Agents Association.

Some of their objection stems from a proposed change in how defendants would be monitored after their pre-trial release.

Under the state's current system, a defendant typically pays 10 to 30 percent of the bail amount to a bail bondsman, who puts up the full amount required. Bondsman lose a portion of that money if their client does not show up to court, giving them a financial incentive to find the defendant without any cost to taxpayers.

In the absence of cash bail, monitoring those defendants would be the responsibility of the Department of Correction – a cost to the taxpayer rather than bail bondsmen. Advocates of bail reform say the additional caseload will not require additional funding, but opponents argue the state will need extra manpower.

Either way, the bill is likely to cost some bail bondsmen their jobs, they say.

"I think they're out to get rid of the industry," Mercado said. "All the underwriters have said they're going to leave the state and that means no bail bondsmen."

It's a debate the bail bonds industry is losing across the country as bail reform becomes a popular aspect of a nationwide criminal justice reform effort.

Lawmakers in California, Connecticut, Maryland and New York have introduced legislation to remake their state's cash bail systems, according to a report by The Pew Charitable Trusts.

Kentucky and Arizona already have moved to a system like the one proposed in Delaware, while New Jersey last year undertook a new pre-trial detention system in which judges can only set bail as a last resort.

"I feel that we in Delaware are really behind other states as it pertains to criminal justice reform," said the bill's lead sponsor state Rep. James Johnson, D-Wilmington. "This is one important step in that direction."

Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.