Delaware Legislation That Will Unconstitutionally Harm the Poor Moving in the Legislature

Moving through the 2021 legislative session in Delaware is Senate Bill 7, which would require cash only bail in a laundry list of what are deemed severe crimes by the 14 democratic sponsors of the bill, including the primary sponsor, Senator Spiros Mantzavinos.  That sounds all well and good, except there are a few key problems.

First, the method to discriminate against defendants based on the criminal charge is not supported by any research.  Research for a generation has concluded that the charge lodged by a prosecutor is not predictive of pretrial misconduct.  The presumption of innocence applies to all charges, and unless there is evidence that one charge or another has a higher risk of failure, then there are no grounds to discriminate.  Certainly, no data has been presented that these charges as opposed to other charges are higher risk.  In fact, some studies find that pretrial misconduct is lower in higher level cases.  Research on the Washington, D.C. system found that the predictive variables related to the charge are less than 8% of the predictive power of pretrial misconduct.  In other words, other factors, like criminal history and prior failures to appear, are more predictive of pretrial misconduct.  This is why, as Chief Magistrate Davis has said, Delaware has embraced the "totality of the circumstances model" in the setting of bail, where judges look at the individual and their history and not just the criminal charge to set bail.

Second, this legislation cuts off access to a personal surety.  The Washington State Supreme Court, interpreting a similar constitutional provision in People v. Barton, found that imposing cash-only bail violated the state constitutional guarantee of bail by sufficient sureties.   By requiring a defendant charged with an offense to put up cash only, the result is that a defendant cannot use a bail agent to be released.  Licensed bail agents offer interest free payment plans to their clients, which will be cut off by this legislation.  Thus, more persons will remain in jail pending trial under this legislation.  To add insult to injury, there is no rational basis for this scheme—surety bonds outperform cash-only bail according to a study of fifteen years’ worth of data in felony cases collected by the Bureau of Justice Statistics at the United States Department of Justice.  Thus, there is no rational basis to discriminate based on the form of the surety either (cash or surety bond), thus offering an equal protection challenge to the law as well.

Third, you might think cash-only in Delaware means cash-only, but in reality, it simply means that defendants are limited to individuals that negotiate cash only bail in Delaware – subject to a 30% premium.  Delaware is unique in this regard, allowing “funders” of cash only bail to charge the highest rate in the nation to defendants to secure their freedom, with zero evidence to support any benefit to public safety.  Thus, Defendants who will post bail will pay three times more than the regulated 10% for a traditional surety bond, up front.  The purported public safety benefits evaporate under further scrutiny and the result of cash-only policies simply harm the poor and pad the pockets of cash funders.  With only a select few who negotiate cash only bails, expect the jails to fill up quickly with those unable to come up with the whopping 30% premium.

Finally, expanding the use of cash-only bail is contrary to settled legal policy in Delaware and may be unconstitutional.  As Chief Magistrate Davis wrote in November 2011 (Legal Memorandum No. 11-294), Cash-only bail “is the top rung of the ‘bail ladder,’ the most restrictive in terms of allowing the defendant a reasonable opportunity to post, and therefore should be used sparingly.”  Here, cash-only bail is going to be imposed in every case enumerated in this legislation and thus will not be used sparingly.

In short, this legislation will harm poor defendants and destroy the presumption of innocence.  If the legislature wants to improve public safety, repealing H.B. 204 from a few years ago (the results of implementing that legislation likely fueling the fast tracking of S.B. 7) and allow judges greater discretion to engage in a totality of the circumstances to set pretrial conditions would be a better solution.

As Justice Thurgood Marshall once wrote, “Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day, the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.”  Senate Bill 7 is just that—a shortcut that will harm the wrongfully accused.