New bail reform law puts public safety at risk, GOP legislators say

DOVER — In 2018, lawmakers approved a bill reforming the state’s bail system and reducing the use of cash bail.

The measure was part of a multi-pronged approach to what its proponents championed as criminal justice reform, but opponents warned it would lead to greater public safety concerns.

Now, more than 10 months after the legislation went into effect, some of the lawmakers who voted against it are sounding the alarm again. They say many of the fears raised during the legislative debate have come to pass.

Although the General Assembly is on break until January, several Republican lawmakers on Tuesday announced plans to attempt to repeal the bail proposal, House Bill 204.

“We are creating more victims in Delaware,” Dover-area Sen. Colin Bonini, the main sponsor of the measure, said in a news conference. “It is a tremendous concern. … The system was not perfect prior to House Bill 204, right? No question. But prior to that, we at least had an opportunity to set bail for those who needed it.

“And the current situation, at least the way it’s being interpreted by the judiciary, the current situation is folks are simply being released.

“Somebody called it a get-out-of-jail free card. It’s not even that. It’s a not-go-to-jail card.”

House Bill 204 was approved by the Senate in January 2018, seven months after it passed the House, with some Republican support. A product of years of effort by the courts, the Department of Justice, law enforcement, the Delaware Center for Justice and others, the bill was intended to ensure dangerous individuals stay behind bars while preventing low-level offenders from remaining in jail as Chief Magistrate Alan Davis told the Senate during the floor debate, “for want of $500.”

Sen. Colin Bonini speaks at the news conference on Tuesday.

Under the law, judges utilize a new risk assessment method to evaluate criminals and how likely they are to reoffend or skip a court hearing. The assessment, based on state data and designed to be predictive, analyzes more than 2,000 factors. Using an algorithm of sorts, with scores based on items such as prior offenses, the assessment offers a non-binding recommendation.

Previously, judges used conversations with offenders, the seriousness of the crime and violators’ criminal histories to determine if they should be granted bail or set free with no monetary conditions prior to trial. If a judge concluded that bail should be given, he or she then set a dollar amount — one that was, according to Judge Davis, often arbitrary.

“The number is magic, quite frankly,” the judge, who heads the Justice of the Peace Court, testified last year. “I do it all the time and I can’t tell you how I do it. I just look at the person that walks in and I kind of get a guess for how much their resources are and I use that as a guideline and I say this is the number. It’s a guess.”

While judges had the discretion to release someone, Judge Davis told senators many felt pressure to impose some type of bail. As a result, poorer individuals were in many cases kept in jail until trial, while others who committed identical crimes but had a little bit more money in their bank accounts could simply walk free.

According to the courts, the failure-to-appear rate has risen by 1 percent from the first three months of 2018 to January, February and March of this year, while the rate for new criminal activity has declined 1 percent. The pretrial detainee population, meanwhile, is 7 percent smaller.

Lawmakers and police officers said Tuesday there are numerous instances of a suspect being arrested by cops and set free by a judge — and then committing another serious offense, if not the same crime, within days or even hours.

“Victims are victims, and we in this community are tired of people being victimized and the ones that victimize them not being held accountable for their actions. That’s all we ask,” Jeffrey Horvath, executive director of the Delaware Police Chiefs’ Council, said.

Middletown Police Chief Robert Kracyla relayed a story of his officers arresting the same person for domestic violence twice in one night, only to see a judge let the suspect go with no bail both times.

“My officers are literally doing paperwork on their arrest while (the suspect is) back at the house reoffending,” he said.

Several speakers said they do not believe the issue is political, with Sen. Bonini noting he expects the measure to get some Democratic support.

The primary responsibility of the General Assembly is public safety, a duty it is currently failing to meet, Sen. Bonini told the audience of reporters, bail bondsmen, police and others.

This isn’t the first time lawmakers have expressed concerns about the implementation of the changes.

The legislature in January approved a resolution urging the judiciary to convene “criminal justice stakeholders to finalize a court rule focused on balancing continued efforts to release defendants who should not be held pre-trial and to protect the public from defendants accused of violent crimes.”

The main sponsor of that proposal, Sen. Bryan Townsend, a Newark Democrat, was also one of the key backers of the House Bill 204. He said earlier this year the resolution stemmed from several “acts of criminality early in the new year that have resulted in certain bail decisions being rendered or essentially the assailant being released on unsecured bail,” prompting many questions from law enforcement and members of the community.”

On Tuesday he fired back against claims House Bill 204 has made the state less safe.

Those early issues have been ironed out, Sen. Townsend insisted, and bail reform has been beneficial to the state.

At its core, bail should be about protecting public safety and guaranteeing the accused shows up in court, he argued. Wealthy individuals should not necessarily be able to buy themselves out of jail, just as those without many resources should not be forced to stay in a cell simply because they can’t afford to post bail, Sen. Townsend said.

While bail currently can only be denied for murder charges, Sen. Townsend noted several of the supporters of the effort to repeal House Bill 204 opposed a measure that would have expanded what offenses bail can be withheld for.

That legislation, which failed in the Senate in 2018, would have allowed denial of bail for non-capital cases when it was determined “no condition or combination of conditions other than detention will reasonably assure the person’s appearance in court when required, or protect the safety of any other persons or the community, or prevent the person from obstructing or attempting to obstruct justice.”

Lawmakers who support undoing bail reform but did not back the pretrial detention measure, Sen. Townsend said, are hypocrites and are missing the point of bail.

“For those of us who are interested in public safety and not political theater, we have to stay vigilant about taking a long, hard look at what is actually happening,” he said.

Some of the people raising concerns about the changes may not be doing so in good faith, he argued, pointing to bail bondsmen as one group of people with a vested interest in undoing bail reform.

In a statement, the judiciary said it will continue meeting with advocates and others to look at possible improvements to the process and urged Delawareans not to “lose sight of the fact that this reform represents an important opportunity to improve the quality of justice in our state.”

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