Delaware: Proposed legislation will increase mass incarceration, lock up the innocent

Bail Reform (H.B. 204) has already passed in Delaware—Proposed change to the Delaware Constitution to allow for preventative detention based on labeling defendants as “Dangerous” is reform that will instead increase incarceration.

June 12 2018

Bail reform in Delaware that was intended to reduce the reliance on monetary bail, allow for additional discretion for pretrial alternatives in some cases, and define a more robust due process has already passed the legislature in the form of House Bill 204.  While we thought there were some sensible parts to the HB 204, we still thought it went too far in terms of reducing the use of financial conditions of bail, making the system less efficient and accountable, and leaving financial bail conditions on a level playing field.

Now, unfortunately, the architects of some undisclosed “package” of bail reform say we have to change the Delaware Constitution (Senate Bill 221) to start locking more people up without bail.  Apparently the first part of the “package” was the bone being thrown to progressives, and now the second part of the “package” is the lock more people up part of the deal.  Now, the ultimate question for bail reformers is whether the increases in detention from this shift in power, and the ability to threaten preventative detention is worth the trade.  We would posit that it is not, and history for over a generation and from this past year proves this.

In Maryland, where the Supreme Court by rule largely eliminated monetary conditions of bail from the discretion of judges, judges turned to preventative detention in many cases, including in misdemeanors.  The rule change resulted in a year-over-year increase in pretrial detention of 22% in Baltimore City, an astounding number, driven by expanding preventative detention.

In New Jersey, prosecutors are seeking detention in 44% of all cases.  They are obtaining detention in approximately 19% of all cases.  Without the ability to request a monetary condition of bail, prosecutors either seek detention or release.  In addition, the range from county jurisdiction to the next is astounding, with one jurisdiction seeking detention in over 80% of cases.  Of course, while the New Jersey Governor is pushing the legalization of marijuana, a small-time marijuana dealer recently spent 16 months preventatively detained, only to be exonerated of all charges.

Not to mention, New Jersey’s system is costly to the State.  While these bills are pushing out the concept of cost for another day because it takes a long time to make a constitutional change, the reality of the costs of bail reform in New Jersey and other jurisdictions must be considered.  New Judges, Prosecutors and Public Defenders will be needed for the voluminous preventative detention hearings that will occur.  The public should be informed how much this will cost before a constitutional amendment is passed.

In the Federal system, since the Bail Reform Act of 1984 became law, which for the first time allowed for preventative detention in the federal system, pretrial incarceration went from 24% detained in 1983 to 72% detained today, which is more than tripling the percentage of persons who get preventatively detained.  When Justice Rehnquist stated in 1987 that “liberty was the norm,” he was right, but now detention is the norm.

Moreover, we would recommend that those considering this issue review this research from the Journal of Criminal Law and Criminology:

Preventative Detention: A Constitutional But Ineffective Means of Fighting Pretrial Crime.

We would draw attention to the idea that the Delaware Legislature is making a policy judgment, and there are good arguments against moving to this system, including from Professor Laurence Tribe:

Professor Tribe has opposed preventive detention on the basis of dangerousness. He has distinguished it from civil commitment of the mentally unstable because a mentally disturbed individual cannot control his impulses. Tribe reasoned, therefore, that detaining an individual “capable of conforming to society’s demands” is a peculiarly “offensive anticipatory condemnation” that is inconsistent with constitutional traditions.

Of course, the U.S. Supreme Court in Salerno gave Delaware the power to change the constitution in this way, but history has proven that while allowed, it is bad public policy and only serves to increase mass incarceration.

Many states are like Delaware—they don’t have preventative detention, and despite calls from hard liners who want to start locking more people up, those states haven’t been persuaded.  The latest was the conservative State of Idaho, which rejected this spring an attempt by the Supreme Court to expand preventative detention and eliminate the right to bail that has been fundamental on this continent for centuries.  Colorado, one of the bail reformed states, still does not have preventative detention and has a similar constitutional provision as Delaware.

To further make this amendment problematic, we believe it will create an endless stream of ripped from the headlines “legislation of the week” every time someone gets out of jail and commits a new crime.  The right to bail is too sacred to make it always in flux.  There is no “one size fits all.”  We would argue that the proponents of this constitutional amendment should present some data that there are certain identifiable classes of offenders they are seeing commit serious new crimes or failures to appear that would be the target of this effort.  In addition, we would argue that no serious analysis has been conducted on this issue.   New crimes while on bail are usually pretty low nationally (5%-10%) largely because of how short the time period is between arrest and disposition.

History is proving that preventative detention can be costly and abused if implemented.  This is a sweeping proposal that will lock more people up and throw away the key.  Preventative detention in bail reform has failed, and one thing is clear: we are simply not going to detain our way to a solution.

Latest to Reject Bail Reform: Idaho

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