Senate Bill 60 is the first leg of a constitutional amendment to Article 1, Section 12 of the Delaware Constitution regarding the right of accused persons to post bail.  If passed, this amendment would allow lawmakers to add to the list of crimes that are considered “non-bailable.”  The Senate passed SB 60 last June, and it is expected that the bill will receive a floor hearing in the House soon.

Why is bail an important issue?

• Currently, only those facing capital murder charges can be denied bail.  Allowing lawmakers to add crimes to the roster of non-bailable offenses would be a significant departure from the current system.
• Allowing the General Assembly to add crimes to the list of “non-bailable” offenses could significantly exacerbate our already-crowded prison system.  For example, Howard R. Young Correctional Institution in Wilmington is already operating at 200% of its designed capacity.  Citizens should carefully consider whether detaining additional offenders before trial is justifiable and affordable.
• Judges currently have the discretion to set a high bail on cases where the defendant poses a danger to the community or is  a potential flight risk.  Removing a judge’s discretion to set appropriate bail in certain cases is reminiscent of mandatory minimum sentencing, which has severely limited judges in sentencing drug cases individually.  This measure would further tie judges’ hands.

Why should I oppose this measure?

• Those who support the bill are drawing from the “Framers’ intent” for the constitution.  They point out that in 1792, manslaughter, rape, robbery, and burglary were capital offenses, and were therefore not eligible for bail.  They argue that over time, fewer and fewer crimes were defined as capital offenses, undermining the constitution’s original intent.  However, public standards are constantly changing.  For example, our state carried out public whippings from 1717 until 1952, and that law was not officially abolished until 1972.  Just as public opinion on public whippings has shifted, so has the public opinion on bail.
• The current bail system is working.  In cases where the offender poses a danger to the community or poses a flight risk, judges can set bail at a rate just high enough to keep the accused person in custody.
• In fact, Delaware prisons are already filled with defendants who cannot post bail.  The Delaware Office of Management and Budget’s Statistical Analysis Center indicates that between December 2007 and December 2009, the average number of detentioners during each quarter was 1,402.  Fewer than 25 of the detentioners behind bars from June to September of 2009 were facing the death penalty.  At a daily cost to Delaware taxpayers of $94.95 to keep a person in jail, adding to the already-large pool of detentioners would further crowd our prisons and stretch our budget.

What Would Be A Better Solution?

• Creating “bright line rules” to deny bail for more crimes is not a good solution– it’s not necessary, and it costs too much.  However, there may be special cases and circumstances (for example, the recent case of the Sussex pediatrician who is accused of multiple sexual assaults on young patients) when a suspect should be held without bail for a period of time before appearing before a judge.  This would allow police to continue their investigation without the risk of the suspect fleeing or harming additional victims.  Legislators are researching whether such a measure would be constitutional.
• Another potential solution would be for lawmakers to revisit the presumptive bail amounts for serious crimes, such as child rape.
• Legislators should consider a variety of solutions for protecting the public without compromising the right that Delawareans have to post bail for non-capital offenses.

What Can I Do?

• Call, email, or write your House Representative and ask him/her to oppose the bill.  Simply contact SURJ with your mailing address, and we can tell you who your Representative is and how to contact them.  Or, look online to find out who your State Representative is, and how you can reach him/her (you will need your nine-digit zip code.  If you don’t know the last four digits of your zip code, find them here.)
• We appreciate hearing from members who contacted their legislators- please drop us a quick note!
• Thank you for being engaged.