Delaware's Dangerous Detour: Why Bail Reform Shouldn't Mean Mass Detention
By Jeffrey J. Clayton, Executive Director, American Bail Coalition
The Delaware House of Representatives is preparing to vote on a constitutional amendment (Senate Bill 11) that would replace the traditional right to bail with a system of risk-based preventative detention -- a concept first championed by President Richard Nixon, who notoriously warned that Americans themselves posed a ‘clear and present danger’ to their own country.
In 1776, when the Virginia legislature sought clarity on the meaning of the right to bail, Thomas Jefferson responded by affirming a principle that would later be enshrined in the Delaware Constitution: the right to bail by sufficient sureties. Nearly 250 years later, that foundational liberty is under threat.
The long history of mass pretrial incarceration at both the federal and state levels has made one thing unmistakably clear: these policies have caused more people to spend longer periods in jail -- almost always with no measurable benefit to public safety. For those who call for stronger deterrence and real improvements in public safety, the answer lies not in expanding pretrial detention, but in following what history has shown to be effective -- swiftly apprehend suspects and then either convict or exonerate them without delay. Throwing more people in legal purgatory for longer serves no one.
In fact, that is why organizations like the Delaware Center for Justice and the ACLU -- hardly allies of the private bail industry -- stand together with it on this issue. They understand that mass pretrial detention threatens civil liberties for everyone. And they recognize that licensed sureties, who take legal custody of defendants around the clock under court-approved contracts backed by financial guarantees, play a vital role in ensuring both liberty and accountability. This includes having the power to arrest and return defendants who flee.
When the federal government adopted risk-based preventative detention in 1984 -- legislation sponsored by segregationist Senator Strom Thurmond -- the result was a dramatic surge in pretrial incarceration. In 1983, the federal pretrial detention rate was only 24 percent. Today, it exceeds 75 percent. The average time to resolve a case has ballooned from about 60 days to 360 -- a sixfold increase. Maryland’s 2017 shift to a similar model, which inspired Delaware’s proposal, also led to a 20 percent rise in pretrial detention. Supporters of Delaware’s reform have conceded that the federal and Maryland bail reforms upon which it is premised have both failed to deliver on their promises.
The last remaining example in support of risk-based detention is New Jersey’s system, launched in 2017. But it has failed to reduce racial disparities as promised, receiving only a B-minus grade from one of its own architects, while costing taxpayers nearly half a billion dollars. While New Jersey has had an 11 percent decline in its pretrial population over eight years, it pales in comparison to the 31 percent decrease that occurred in the previous decade, when the constitutional right to bail still existed. In fact, the pretrial population dropped from 18,380 in 2007 to 12,670 by 2017 -- before the new system was even implemented. This is clear evidence that other factors were in play to explain the reason for the decrease. To date, no study has shown that bail reform was the cause of the continued decline.
Delaware is poised to repeat the nightmare failures of Nixon/Thurmond-era policies by empowering the government to label its own people a clear and present danger -- and to incarcerate them indefinitely, based solely on a prosecutor’s charges. What’s at stake is more than policy -- it’s the foundational principle that people are innocent until proven guilty and deserve their liberty unless a court proves otherwise. Delaware should protect that principle, not abandon it.
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