Lawmakers take major step toward bail reform

DOVER — The state Senate on Tuesday passed a bill that is step one of a two-phase process aimed at making major changes to the state’s bail system.

The bill now goes to Gov. John Carney, who will sign it.

The first major measure passed by lawmakers this year, House Bill 204 was approved in the Senate 15-5, with one lawmaker not voting. It passed the House 38-3 in June.

The bill seeks to update the state’s laws around bail to ensure individuals who are dangers to society remain behind bars, while preventing low-level offenders from remaining in jail “for want of $500,” Chief Magistrate Alan Davis told senators.

Under the measure, judges would begin using a new risk assessment method to evaluate offenders 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.

The legislation would also expand the power of the courts to grant release with conditions, such as having no contact with a victim, and would give the Department of Correction greater ability to investigate someone believed to have violated release requirements.

Currently, judges use conversations with offenders, the seriousness of the crime and the offenders’ criminal history to determine if they should be granted bail or set free with no monetary conditions prior to trial.

If a judge comes to the conclusion bail should be given, he or she then must set a dollar amount — and that figure, Judge Davis said, is often arbitrary.

“The number is magic, quite frankly,” Judge Davis, the head of the Justice of the Peace Court, testified. “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 offenses. Based on the score, the assessment offers a non-binding recommendation.

The state uses an assessment of sorts now, but that system, Judge Davis said, is flawed, with some portions even being “inversely predictive.” The chief magistrate would know — he created it.

Currently, there’s nothing preventing judges from simply releasing someone, but many feel pressure to impose some type of bail, Judge Davis said. That can result in poorer individuals being kept in jail until trial, while others who commit identical crimes can walk free.

“We detain a lot of people that we don’t intend to detain because they’re unable to afford relatively modest bail amounts,” Judge Davis said.

As of October, 712 people were being detained because they could not pay bail. Of those, about 144 had been given bail of no more than $5,000, according to Judge Davis.

About a quarter of the Department of Correction’s population is held pretrial, he said. According to the department, 6,500 to 7,000 people are incarcerated in Delaware.

Judge Davis took questions on the Senate floor for 90 minutes, mainly being pressed by Republicans over the bill’s implications.

The five legislators who voted against the bill Tuesday, all Republicans, expressed concerns about negative impacts on public safety and the state budget.

“We’re going to be legislating more victims,” Sen. Dave Lawson, R-Marydel, said. “I think that itself is criminal.”

Part two of bail reform involves a constitutional amendment that supporters hope will be introduced in March. That measure would expand the ability of judges to deny someone bail, a decision currently reserved solely for murder charges.

Delaware has four types of bail: own recognizance, where a defendant is released upon promise to appear for future court dates; unsecured, where the accused is required to pay money if he or she does not appear in court; secured, where someone must pay a sum of money or provide property to be released; and cash only, where money is required for pre-trial release.

Bail bondsman make their living helping people meet secured and cash bail and, in some cases, seeking out people who have skipped court appearances.

House Bill 204 was developed over the course of years, with the Delaware Department of Justice, law enforcement, courts, Delaware Center for Justice and other bodies providing input.

But several senators complained the bill was “rushed,” asking why the proposal was being debated when the constitutional amendment has not even been introduced yet.

“It seems like we’re putting the cart before the horse, in my opinion,” Minority Leader Gary Simpson, R-Milford, said.

In response to questions about cost, supporters said the measure is not expected to grow the state budget. Noting that housing an inmate costs around $36,000 per year, Sen. Bruce Ennis, D-Smyrna, said the state might be able to save several million dollars by releasing low-level, non-violent offenders instead of detaining them prior to trial.

Others disagreed with that assessment, however, and argued the proposal is contrary to the public interest.

“If we create a system, regardless of how well-intentioned, that takes more of those people and puts them out here with us, we are going to create more victims,” Sen. Colin Bonini, R-Dover, said.

He accused supporters of only telling one side of the story and of seeking to eliminate bail entirely, notions one of the main sponsors shot down.

“I think some of the disagreement we heard today was just sort of contrived, made up of not real data and we shouldn’t legislate that way,” Sen. Bryan Townsend, D-Newark, said, lamenting what he called “the bitter partisan that you see in D.C.” coming to Delaware.

Four Republicans voted for House Bill 204, with Sen. Brian Pettyjohn, R-Georgetown, abstaining. Every Democrat backed it.

The act goes into effect Jan. 1.

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