Preventative Detention/Establish/List of Circumstances

This Act amends Delaware’s laws regarding release of persons accused of crimes (Chapter 21 of Title 11 of the Delaware Code) as required in conjunction with the enactment of an amendment to § 12 of Article I of the Delaware Constitution permitting preventive detention, as proposed by Senate Bill No. 11 of the 152nd General Assembly. This Act protects both defendants’ due process rights and public safety by establishing the list of circumstances for which defendants may be detained pretrial without the opportunity for release and providing adequate due process protections for detention-eligible defendants. This Act protects public safety by permitting courts to detain a defendant who is charged with an enumerated felony offense where no condition or combination of conditions of bail will reasonably assure a defendant’s appearance in court or the safety of a witness, a victim, or the community. This Act also protects defendants’ rights by doing the following: (1) Requiring the Attorney General to establish by proof positive or presumption great that the defendant committed the detention-eligible offense and by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the defendant’s appearance at court proceedings, reasonably assure the protection of the community, victims, witnesses, or any other person, and reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice. (2) Ensuring detention-eligible defendants are represented by counsel at the initial detention and subsequent hearings. (3) Requiring courts to hold a full preventive detention hearing within 10 days of the defendant’s arrest where defendants have the right to testify, to present evidence, and to cross-examine witnesses against them. (4) Requiring expedited review of the detention order by Superior Court. (5) Providing speedy trial protections for any defendant who is detained before adjudication due to preventive detention. This Act also does the following: (1) Improves procedural fairness by permitting courts to make transparent decisions about who to detain and who to release pretrial. (2) Strengthens the strong presumption of pretrial release under least restrictive conditions for those defendants who can safely be released in the community. This Act requires a greater than majority vote for passage because this Act is enabling legislation to an amendment to the Constitution which, when enacted, amends § 12 of Article I of the Delaware Constitution to require an affirmative vote of two-thirds of the members elected to each house of the General Assembly to create the list of detention-eligible offenses created by § 2116(b)(1) of Title 11 contained in this Act. Finally, this Act makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

• David P. SokolaD
• Krista GriffithD
• Stephanie L. HansenD