Delaware Gov. John Carney signed a bill late last week that places the state among a small group that has moved away from cash bail.
“You have poor people who pose no risk of flight or no risk to the community incarcerated on a full-time basis before trial,” says Delaware state Sen. Bryan Townsend, a co-sponsor of the bill. “That’s not at all what the criminal justice system is supposed to be about.”
On any given day, jails across the country house some 700,000 people -- many of whom are there because they can’t afford to pay bail. In Delaware, officials say about 25 percent of the prison population is made up of people awaiting court dates.
The problem with cash bail, says Insha Rahman, an expert on bail reform at the Vera Institute of Justice, a research and advocacy organization, is that it isn’t an effective or fair “sorting mechanism” for who should be detained and who shouldn’t.
“Money doesn’t guarantee that people won't engage in new criminal activity," she says, "and it doesn’t guarantee that people will come back to court.”
Other states that have moved away from cash bail include Arizona, New Mexico, Maryland, New Jersey and the District of Columbia. But that number is likely to grow: More than 40 states have task forces or commissions considering changes to bail and pretrial detention, according to the Laura and John Arnold Foundation.
“We’re at a moment where people are in agreement -- and state governments are in agreement -- that our current framing of bail doesn’t work,” says Rahman.
The new law in Delaware does not eliminate cash bail but encourages judges to first use other pretrial release conditions, such as an ankle monitor, mandatory check-ins with court officers and restrictions on travel, alcohol consumption and contact with victims. The law also instructs judges to use an evidence-based risk assessment tool that gauges how likely the defendant is to show up for trial or commit a crime.
Until now, state law required judges to set a monetary bail amount. In some cases, low-risk defendants could not afford even the lowest bail conditions.
A broad coalition of criminal justice officials in the state supported the measure, from state police to the chief justice of the State Supreme Court and the Department of Corrections. The bill received bipartisan support in both chambers, but some Republican senators voted no after expressing skepticism that it would generate the predicted cost savings from a reduction in the jail population.
The new law is likely a precursor to more changes.
According to Townsend, a lead senate sponsor of the new law, bail reform advocates are working with some legislators to introduce a constitutional amendment in March that would ensure individuals who are judged to be at high risk of fleeing or committing a crime cannot buy their way out of detention.
Together, the new law and the proposed amendment would guarantee that a person's ability to pay is not the reason low-risk defendants stay in jail or high-risk defendants get out.