Bail reform fights mass incarceration, seeks more fairness to the poor. Delaware needs it now

Karen Lantz is staff attorney and policy counsel for ACLU Delaware.

Today in Delaware, if you are accused of a crime, whether you go to prison or go home while awaiting trial often depends on your access to money. With enough cash, you can post bail or pay a bail bond company to do so, and be released regardless of the charges or evidence.

If you can’t pay, you are likely to remain in prison for months or even years, even if the evidence against you is weak. Staying in prison means you may lose your job, your home or even your kids.

Senate Bills 221 and 222, on the full Senate agenda for today, provide a better way. If these bills pass, they will establish a system that is designed to make monetary bail conditions rare. Delaware can then join states like New Jersey in reducing the influence of money on pre-trial release.

SB 222 creates a presumption that most people accused of crimes will be released until trial with non-monetary conditions, such as reporting requirements and restrictions on travel. SB 221 amends the Delaware Constitution so that when people are accused of the most serious crimes and there is evidence that they will evade trial or harm people if released, courts will be empowered to order pretrial detention — no matter how much money the defendant can pay. 

The proposed pretrial detention procedures establish some due process protections, including the right to counsel, and would replace an unconstitutional guessing game about what levels of monetary bail will keep perceived dangerous defendants in and let others out. The legislation also requires a quick court date for those detained without bail. 

In addition to being more fair, ending money bail is also an important step in reducing our mass incarceration problem. America locks up more of its people that any other nation, and Delaware imprisons at a rate even higher than the extreme U.S. average.

Other states that have adopted similar bail reforms have been able to dramatically reduce the number of pretrial detainees without increasing crime.

These reform bills are a rare example of change supported by all the stakeholders in the system: the courts, law enforcement, prosecutors and defense attorneys. The main opponent is the multibillion-dollar bail bond industry, which benefits from the current system that coerces people into buying bail bonds so they can get out of jail.

Some in the bail industry claim that releasing the people currently held because they cannot pay small amounts of bail will harm public safety. These were the same dire claims made in New Jersey, where they failed to materialize. 

Under any system, there will be isolated cases of people who commit tragic crimes while on pre-trial release. But there is no reason to think that moving from cash-based detention to evidence-based detention makes that problem worse. On the contrary, we are more likely to get detention decisions right using a risk assessment instrument than access to money as the test. 

As with every other part of our criminal justice system, change is not only about what the legislature writes into law, but also what police, prosecutors and judges do with the power they are given. That is why transparency is so important. It allows lawmakers and the public to watch closely to see if the new system succeeds at substantially reducing the number of people detained before trial.

To that end, Senate Bill 222 requires disclosure of aggregate information about who is being detained and why. 

We know that the General Assembly must consider dozens of important bills in the final month of this legislative session. But we urge them to make bail reform a priority.

If the first leg of the constitutional amendment is passed now, the next session of the General Assembly could pass the final leg in January 2019. But if SB 221 is not passed this month, then the soonest this reform package could be passed or implemented is 2021.

In that two-year gap, thousands of people’s lives may be ruined by unnecessary detention because they could not afford a small amount of bail. We cannot afford to wait.