DOVER, Del. (AP)- The Delaware state Senate gave initial approval Thursday to a proposed constitutional amendment under which criminal offenders other than those charged with murder could be held without bail.
The measure, which passed the Senate unanimously and now goes to the House, is the first leg of a constitutional amendment that must receive two-thirds approval by both chambers in two consecutive General Assemblies.
Under the legislation, offenders charged with certain felony offenses, which would be determined at a later date by the legislature, could be held without bail under certain circumstances, including when there is a fair likelihood of conviction because the “the proof is positive or the presumption great.”
There also would be to be “clear and convincing” proof that no conditions other than pretrial detention could reasonably assure the offender’s appearance in court when required and the safety of any other person or the community.
Supporters of the measure said it is an effort to balance the rights of criminal defendants with the need to protect public safety.
At one time, the definition of a “capital offense” for which bail could be withheld under Delaware's constitution included crimes such as manslaughter, rape, robbery, burglary and armed assaults. That definition has since been narrowed to murder. That means the only way a judge can try to ensure that a defendant who is charged with any other crime, and who might be a flight risk or public safety threat, remains in custody until trial is to set bail so high that a defendant cannot meet it.
Thursday’s Senate vote came less than a year after lawmakers passed a bill requiring more people charged with serious crimes to pay cash bail in order to be released from custody pending trial. That bill established secured cash bail as the baseline to be used by judges in determining pretrial release conditions for defendants charged with any of 38 specified offenses. They include the most serious violent felonies, as well as certain gun crimes, assaults, sex crimes and domestic violence offenses. The bill, which is now law, also requires that when a judge sets bail in a case involving any of the 38 categories of offenses, the defendant must relinquish any firearms in his or her possession.
Under a previous law, the presumption of cash bail as the standard for pretrial bond conditions applied only to defendants charged with committing violent felonies involving firearms, and to defendants charged with committing violent felonies while on a probation or pretrial release for a previous criminal charge.
Opponents of last year's legislation, including several progressive Democrats, argued that cash bail requirements disproportionately affect low-income and minority Democrats, and that the legislation was a step backward in Delaware’s bail reform efforts.
While establishing cash bail as the presumptive bond for specified offenses, last year’s bill gives judges discretion to conduct bail review hearings and to modify bail conditions as they see fit. It also includes a provision stating that it would expire upon enactment of the constitutional amendment allowing bail to be denied for crimes other than murder.