Courts’ bail reform policies questioned

DOVER — In 2018, lawmakers passed a bill reforming bail in Delaware, with the goal of preventing someone who committed a relatively minor crime from being locked up before trial simply because he or she couldn’t afford to make bail. It was hailed by supporters as a big step toward a fairer, less punitive system, with Justice of the Peace Court Chief Magistrate Alan Davis telling senators it would mean far fewer people remaining in jail “for want of $500.”

The judicial branch was tasked with creating procedures for implementing the changes, which went into effect Jan. 1, but there have been some bumps in the road, according to one lawmaker.

The issue could set the stage for a confrontation between the General Assembly and top decision-makers in the courts, and although such a fight is likely to take place in private, spillover may leak out.

“There have been a few different — one in particular in the Dover area — 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 and a lot of questions were coming up from law enforcement and other members of the community,” said Sen. Bryan Townsend, a Newark Democrat who cosponsored the bail reform bill.

After hearing multiple reports of individuals going free who likely should not have been released before trial without first putting up bail, he introduced a resolution urging the judiciary to revisit its interim rule and potentially make changes. It passed overwhelmingly.

The resolution, which specifically notes the bail bill calls for cash bail for someone who commits a violent crime with a gun, strongly recommends a convening of “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.”

A top court official said the judiciary is open to possible improvements and wants to ensure the rule both protects members of the public while fulfilling the bill’s intent of revamping bail.

“The judiciary is aware of the senator’s concerns and has reached out to the senator and other members of the General Assembly and we are working with them to answer any questions or concerns they may have. As we stated in December, the bail reform rules that were adopted are interim — and were put in place in order to meet a Jan. 1 deadline set by the legislature — and we continue to work with our system partners, and seek feedback, as we implement reforms to pretrial release,” court administrator Amy Quinlan said.

“We also are continuing to consider alterations and improvements to the rules based on our experience as we move forward. The rules dealt with important ambiguities in the legislation, and in particular, made sure that judges had discretion to impose substantial money bail in cases where public safety was at risk — such as gun crimes, violent crimes, domestic violence crimes, and sex crimes, and in felony DUI cases. The interim rule put public safety first, while faithfully trying to reduce the imposition of bail in cases involving non-violent offenses.”

In an interview, Sen. Townsend emphasized the recent legislation was largely targeted at ensuring the bail reform bill was understood and applied properly, not rebuking the courts for the rule judges and judicial administrators drafted.

“I think that the broader point was … the timing around when the rules were issued, when they went into effect, how much training was received by different stakeholders in the process,” he said, noting the rule was announced two weeks before it kicked in.

In one instance, bail was not set for an individual who led police on a chase in a stolen car before crashing near a crowded area, and coupled with a separate incident involving a gun crime, the episode sparked concerns from law enforcement, according to Sen. Townsend.

That led to his call for a review of the process.

“There are going to be growing pains to any new system, right, but when it’s a matter of public safety … the growing pains have got to be addressed as soon as possible,” he said.

The bail reform legislation passed in January 2018 gives judges greater discretion and more tools to set bail. A new risk assessment measure that analyzes more than 2,000 factors offers a look at how likely an offender is to commit another crime or skip a court hearing, rather than making a more arbitrary bail determination.

“The (bail amount I set) is magic, quite frankly,” Judge Davis testified in front of the Senate during a debate on the bill 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.”

The risk assessment involves an algorithm of sorts, with judges assigning scores to offenders based on things like past crimes. Its conclusion is nonbinding, meaning the final decision on bail is up to the judge.

Judge Davis last year said many judges felt pressured to impose bail even on low-level offenders, which can result in them remaining locked up before trial simply because they cannot afford to pay a few thousand or even a few hundred dollars. As a result, the system has in some ways essentially been biased against poor defendants.

As of October 2017, 712 people were being detained because they could not pay bail, with about 144 having bail of no more than $5,000, according to Judge Davis.

Being locked up for weeks or months can have devastating consequences for many, depriving families of much-needed paychecks — another way the system has hindered those of little means.

“Bail is supposed to be to protect people’s safety and ensure their appearance in court, period,” Sen. Townsend said. “It’s not supposed to be punitive.”

Delaware has four types of bail: own recognizance, where a defendant is set free on the promise he or she will appear for future court dates; unsecured, where the same promise is made but the defendant must pay a certain sum if he or she fails to show up; secured, where a defendant can be released by providing a designated sum of money or property to cover the cost; and cash-only, which is similar to secured but requires a monetary payment in addition to an agreement the individual will appear for court hearings.

Bail can only be denied in Delaware for murder charges.

Sen. Townsend said he has talked to court administrators but hasn’t broached the subject with Chief Justice Leo Strine, who has rankled legislators in the past for speaking out and what some see as overreach.

Sen. Townsend is hopeful the resolution can resolve existing issues, whether they be with the rule itself or in how judges and others are made aware of the reform effort.

Ironing out the wrinkles is essential if legislators hope to continue bail reform, which seems likely after a related measure, which would have expanded the ability of judges to deny bail, was defeated last year.

“We don’t want necessary and important reforms to be delayed by avoidable problems that arise with implementation,” Sen. Townsend said.

Staff writer Matt Bittle can be reached at 741-8250 or mbittle@newszap.com. Follow @MatthewCBittle on Twitter.

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