Pretrial detention reform a possibility in Delaware

At any given time, one out of five prisoners in Delaware is someone who can’t afford to pay pretrial bail.

This is a system that criminalizes poverty, and that needs to change, said Ashley Biden, Delaware Center for Justice executive director, to a few dozen people at Sen. Ernie Lopez’s constituent coffee Oct. 24, in the Lewes Public Library.

Biden was on hand to discuss House Bill 204, which looks to modernize pretrial detention and bail by reducing reliance on monetary conditions.

“This is smart policy,” said Biden, adding that the state’s judges and police have helped develop the bill.

Biden was joined by Kate Parker West, the center for justice’s local site coordinator for the Smart Pretrial Initiative. She is a member of the bar in New Jersey and Pennsylvania, and has passed the Delaware bar exam, but her application is pending.

West said judges would still have full discretion on pretrial conditions, but they would also use a risk assessment as a tool for setting those conditions. She said judges will still be able to keep violent criminals in jail, but they would have discretion for low-level, nonviolent offenders who simply can’t afford bail.

“The collateral consequences are for real,” she said. She then provided a slide showing the 2-year recidivism rate in Delaware increases the longer a person spends in pretrial detention: 2–3 days, 17 percent chance; 4–7 days, 35 percent chance; and 8–14 days, 51 percent chance of returning to prison for a different crime.

Lopez said he supports the bill. He said it brings much-needed reform and is fiscally conservative, which as a Republican, he said he likes. Both Biden and West cited model programs across the country that have saved taxpayers millions of dollars.

This isn’t about being a liberal or conservative, said Lopez. These are American issues, he said.

Last year the bill garnered bipartisan support, but not enough to pass during the last legislative session.

Delaware’s General Assembly operates on a 2-year session cycle that begins in early January and runs through June. Bills not passed in the first year can be taken up in the second year without being reintroduced.

HB204 was introduced June 1 by Rep. James Johnson, D-New Castle. It was reported out of the House Judiciary Committee June 14. Then June 27, by a 38-3 measure, the bill was passed by the House. The three no votes were Republican Reps. Richard Collins of Millsboro, Charles Postles Jr. of Milford and Jeff Spiegelman of Clayton.

The Senate Judicial & Community Affairs Committee reported it out of committee June 29, so it is now awaiting action by the full Senate.

West said she wouldn’t call any delay in the passing of the bill opposition. The bill was introduced late last session, she said. Some senators wanted time to thoughtfully consider the legislation before voting, she added.

The second year of the 149th General Assembly begins Tuesday, Jan. 9. Lopez said he would be asking for the bill to be discussed by the full Senate shortly after the session begins.

Editor’s note: This story has been updated.