Legislators can learn from the history of Delaware politics and reject dangerous legislation.
June 19 2018
Ashley Biden is hard at work advocating for bail reform in Delaware. She has been a vocal proponent for the movement, despite being otherwise busy with her new line of hoodies and clothing line. Of course, friends of Ashley have previously posted bail for her when she was charged with drug possession, so maybe it’s the personal ire for having had to post bail that motivates the daughter of the former Vice President.
We don’t need to resolve the motivation of why in this equation. What we need to resolve is some history. And in resolving this history, we think need Ashley needs to give Joe a call and ask him how he participated in the largest expansion of pretrial incarceration in this nation’s history, why he voted for such a law, and why, when he was Chairman of the Senate Judiciary Committee, he, along with the rest of the learned Senators, ignored the warning signs of mass incarceration, and let the federal government completely destroy the right to bail. And then maybe ask him why she should now be advocating for the same law in Delaware.
For several years prior to the Bail Reform Act of 1984 becoming law, a law then Senator Biden voted for, the ACLU and others, including former Yale Law Professor and noted civil libertarian Daniel Freed, warned the Senators in the Judiciary Committee not to do what Delaware is now considering doing—giving the government the power to preventively detain, even if somewhat limited. At the time, the practice was thought unconstitutional, but nonetheless, Professor Freed warned then Senator Biden at a subcommittee of the Senate Judiciary Committee held on July 20, 1981:
“If you authorize and require a Federal judge, for the purpose of detaining a noncapital defendant, to find that he or she is dangerous, you are imposing a penalty which no subsequent trial can remove.”
This addition, Professor Freed warned, would remove the restraint of U.S. Attorneys, and cause a “dangerous” slope toward more incarceration.
Of course, it is well documented that the entire experiment, upon which the new Delaware bail system is proposed to be based, completely failed. We now know that the federal government has tripled the rate of pretrial detention, going from 24% prior to the act, to over 70% detained today.
But that’s not the end of the story.
Then-Senator Joe Biden had a chance to fix things when he was Chairman of the Senate Judiciary Committee. On June 16, 1989, a subcommittee of the Senate Judiciary Committee reviewed for the first time the results of the Federal Bail Reform Act of 1984, which for the first time allowed preventative detention. The results were not good. Former U.S. Court of Appeals Judge Edward Becker was the first witness at the hearing on that breezy 95-degree day in Washington. He told the subcommittee that there was an explosion in pretrial incarceration as a result of the Bail Reform Act that was overwhelming the federal judiciary. Judge Becker went on to tell the Committee that he was “astounded” as to the statistics on preventative detention, noting that in 1988 alone the average daily population of pretrial detainees in federal custody increased by 22% in that one year. The jail situation, according Judge Becker, had become so “desperate” that detainees were being housed hundreds of miles away, with detainees in Delaware being housed in Otisville, NY, which is 235 miles from Dover.
At the time, the ACLU and others warned Senator Biden and every member of the legislature, from 1981 to the passage of the legislation in 1984, that giving the power to detain defendants based on dangerousness was not something the state would be able to restrain itself from doing, and that to pass former Assistant Attorney General (and later Supreme Court Justice) William H. Rehnquist’s preventative detention concept would endanger the right to bail and result in mass incarceration. Rehnquist unsurprisingly later held his idea thought by many to be unconstitutional as constitutional, when he wrote the majority opinion in U.S. v. Salerno.
Yes, all of this actually happened. Notably, or perhaps without note, then-Senator Joe Biden did nothing to stop it, despite warnings from the finest jurists in the United States.
Fast forward to the present and we would urge Ashley to call Joe and get the facts so she can properly explain to the legislature that she is advocating for a constitutional change in Delaware that her father voted for at the federal level – and that ultimately led to policy that destroyed the right to bail in the United States and is clearly, and beyond doubt, one of the largest causes of generational mass incarceration in U.S. history.
As the time for a vote comes on this constitutional amendment in Delaware and bail reform in Senate Bill 221 and 222, we believe the words of Yale Law Professor Daniel Freed ring more true now than they did in 1981:
“If you authorize the denial of bail in noncapital cases, you will, after 192 years, be changing Federal law, and before you reach the question of constitutionality-—after all, the eighth amendment was enacted by the same Congress that enacted the Judiciary Act—the question is, what do you know today that Congressmen didn’t know in 1789 and that magistrates and judges in this country in colonial times, and in England long before, didn’t know?”
The answer today is we do not know more than the founders of this country, despite all of our fancy human-behavior predicting machines. But, one thing we do know is that preventative detention is a civil rights evil for which the name Biden should disassociate, as should the State of Delaware.