Delaware 149th General Assembly (2017-2018) Status: Passed Senate 1 D cosponsors

SB 221 — AN ACT PROPOSING AN AMENDMENT TO ARTICLE I, § 12 OF THE DELAWARE CONSTITUTION RELATING TO CRIMINAL PROCEDURES.

Last action — Laid On Table in Senate

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  1. ✓
    Introduced
  2. ✓
    In Committee
  3. 3
    Passed Senate
  4. 4
    Passed House
  5. 5
    To Executive
  6. 6
    Enacted

This bill died with 149th General Assembly (2017-2018). It reached “Passed Senate” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.

This bill is no longer active — its legislative session has ended, so there is no live prognosis. It would have to be reintroduced in the current session to move again.

Summary

This Act is the first leg of a constitutional amendment that modernizes the Delaware Constitution’s bail provision and clarifies the power of the General Assembly and the Courts to define certain felony offenses for which, or circumstances under which, pretrial release on bail may not be available. Upon enactment of the second leg of this constitutional amendment, Article I, § 12 of the Delaware Constitution proposed will do all of the following: (1) Retain the express declaration of a general right to have bail set in a criminal case. (2) Provide that the only crimes for which bail must be withheld are capital murder, where the evidentiary proof is positive and presumption of the accusation great, and other felony offenses determined by and under procedures prescribed by law where the evidentiary proof is clear and convincing. (3) Ensure that one condition precedent to bail being withheld in non-capital cases is a finding that no bail condition or combination of bail conditions other than detention will assure the safety of another person or the community, that the person will appear for future proceedings, or that the detention is necessary to prevent the person from obstructing justice. The proposed change to permit a person charged with a non-capital crime to be held without bail will not take effect until the General Assembly revises Chapter 21 of Title 11 of the Delaware Code to prescribe by law the circumstances and procedures under which detention without bail may occur. With this change, though, Delaware can move forward toward the type of modern bail system that has been increasingly adopted by our sister states, through amendment of their state constitutions, when needed, and the development of statutory procedures that provide, in extreme cases, pretrial detention without bail. Under current Delaware law, the only circumstance in which a person might be detained without bail is when the person is charged with capital murder. This Act would have no effect on bail procedures and standards in capital cases. The fact that bail can be withheld only in capital cases, however, is inconsistent with the evidence-based and informed decision-making that the General Assembly looked to adopt through the Justice Reinvestment Act and the findings and ongoing work of our Supreme Court's Access to Justice Commission. At present, a Delaware state court judge cannot order pre-conviction detention in any non-capital case. Instead the judge can only attempt to set the bail so high that a defendant cannot make it, which can result in dangerous defendants with wealth being able to obtain release even if they pose a risk of harm to the public or a specific person, such as a witness or victim. This Act is one step toward completing a pretrial release-detention continuum that requires specific evidence-based release-detention decisions. Any legislation subsequently enacted or court procedures adopted under this Act requires a court’s individualized, fact-governed decision-making regarding detention in order to pass muster under the United States and Delaware State Constitutions. And, under this Act, any statute defining offenses for which, or circumstances under which, a person can be subjected to pretrial detention without bail must be enacted by an act of the General Assembly that is separate from an act that creates or amends the offense or circumstances and receives the concurrence of a two-thirds majority of each House of the General Assembly.

Bill Text

How this bill changes current law

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AI-generated reading aid from the bill's amendatory text — verify against the official bill.

This bill amends the Delaware Constitution to modernize bail provisions, allowing for certain felony offenses to deny bail under specified conditions.

  • Article I, § 12

    All prisoners shall → All persons shall

    Changes 'All prisoners' to 'All persons,' broadening the definition of who is bailable.

  • Article I, § 12

    For unless for capital offenses when the proof is positive or the presumption great; → Unless for capital offenses when the proof is positive or the presumption great;

    Clarifies the language by removing 'For' at the beginning of the sentence.

  • Article I, § 12

    For other felony offenses, if all of the following apply: → For other felony offenses, if all of the following apply:

    No change in this line, maintaining the criteria for denying bail in felony cases.

  • Article I, § 12

    and when When persons are confined before conviction on accusation for such offenses → When persons are confined before conviction on accusation for such offenses

    Removes redundancy in the phrasing regarding access to confined individuals.

  • Article I, § 12

    any offense

    Removes the word 'any' to streamline the text concerning access to accused individuals.

Action History

  1. Laid On Table in Senate

  2. Roll Call Rescinded in Senate

  3. Reconsidered in Senate

  4. Defeated By Senate. Votes: 11 YES 8 NO 1 NOT VOTING 1 ABSENT

  5. Reported Out of Committee (Executive) in Senate with 5 On Its Merits, 1 Unfavorable

  6. Introduced and Assigned to Executive Committee in Senate

Sponsors

Sponsorship breakdown

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4 sponsors · 3 co-sponsors · 55 not signed on · 8 voted No

Sponsors (4)

Co-sponsors (3)

Not signed on (55)

55 members have not signed on to this bill.

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"Not signed on" means a member has not sponsored or co-sponsored this bill — it does not imply opposition. Members flagged Voted No have a recorded No vote on this bill.

Whip count is in markup. Polling the chamber and every recorded vote this session. Only the first open is slow. It’s instant for you after this. Calling the roll · Tallying · Engrossing

Votes

2/3

Failed 11 Yea · 8 Nay · 2 Other
Party YeaNayPresentNot Voting
Unaffiliated 7302
Democratic 4100
Republican 0400
Total 11802
% of votes cast 52%38%0%10%
How each member voted (21)
Member Party Vote
Anthony Delcollo — Not Voting
Brian J. Bushweller — Yea
Bruce C. Ennis — Yea
Catherine Cloutier — Not Voting
Colin Bonini — Nay
David B. McBride — Yea
Ernesto B Lopez — Yea
F. Gary Simpson — Nay
Gregory F. Lavelle — Nay
Harris B. McDowell — Yea
Margaret Rose Henry — Yea
Robert Marshall — Yea
Bryan Townsend Democratic Yea
David P. Sokola Democratic Nay
John "Jack" Walsh Democratic Yea
Nicole Poore Democratic Yea
Stephanie L. Hansen Democratic Yea
Brian Pettyjohn Republican Nay
Bryant L. Richardson Republican Nay
Dave G. Lawson Republican Nay
Gerald W. Hocker Republican Nay

Official roll call →

Subjects

public-safety civil-rights
Cross-referencing the record. Reading this bill against every other bill in the corpus by meaning, not keywords. Only the first open is slow. It’s instant for you after this. Matching · Ranking · Engrossing

Frequently asked questions

What does SB 221 do?
This Act is the first leg of a constitutional amendment that modernizes the Delaware Constitution’s bail provision and clarifies the power of the General Assembly and the Courts to define certain felony offenses for which, or circumstances under which, pretrial release on bail may not be available. Upon enactment of the second leg of this constitutional amendment, Article I, § 12 of the Delaware Constitution proposed will do all of the following: (1) Retain the express declaration of a general right to have bail set in a criminal case. (2) Provide that the only crimes for which bail must be withheld are capital murder, where the evidentiary proof is positive and presumption of the accusation great, and other felony offenses determined by and under procedures prescribed by law where the evidentiary proof is clear and convincing. (3) Ensure that one condition precedent to bail being withheld in non-capital cases is a finding that no bail condition or combination of bail conditions other than detention will assure the safety of another person or the community, that the person will appear for future proceedings, or that the detention is necessary to prevent the person from obstructing justice. The proposed change to permit a person charged with a non-capital crime to be held without bail will not take effect until the General Assembly revises Chapter 21 of Title 11 of the Delaware Code to prescribe by law the circumstances and procedures under which detention without bail may occur. With this change, though, Delaware can move forward toward the type of modern bail system that has been increasingly adopted by our sister states, through amendment of their state constitutions, when needed, and the development of statutory procedures that provide, in extreme cases, pretrial detention without bail. Under current Delaware law, the only circumstance in which a person might be detained without bail is when the person is charged with capital murder. This Act would have no effect on bail procedures and standards in capital cases. The fact that bail can be withheld only in capital cases, however, is inconsistent with the evidence-based and informed decision-making that the General Assembly looked to adopt through the Justice Reinvestment Act and the findings and ongoing work of our Supreme Court's Access to Justice Commission. At present, a Delaware state court judge cannot order pre-conviction detention in any non-capital case. Instead the judge can only attempt to set the bail so high that a defendant cannot make it, which can result in dangerous defendants with wealth being able to obtain release even if they pose a risk of harm to the public or a specific person, such as a witness or victim. This Act is one step toward completing a pretrial release-detention continuum that requires specific evidence-based release-detention decisions. Any legislation subsequently enacted or court procedures adopted under this Act requires a court’s individualized, fact-governed decision-making regarding detention in order to pass muster under the United States and Delaware State Constitutions. And, under this Act, any statute defining offenses for which, or circumstances under which, a person can be subjected to pretrial detention without bail must be enacted by an act of the General Assembly that is separate from an act that creates or amends the offense or circumstances and receives the concurrence of a two-thirds majority of each House of the General Assembly.
Who sponsors SB 221?
SB 221 is sponsored by Bryan Townsend (Democratic), Margaret Rose Henry, Helene M. Keeley, Paul S. Baumbach, Harris B. McDowell, Charles Potter Jr., and James Johnson.
What is the current status of SB 221?
This bill died with 149th General Assembly (2017-2018). It reached “Passed Senate” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.
Where can I track SB 221?
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