Here's my dilemma. I'm quite proud of Delaware's foresight concerning bail reform. Delaware, apparently through the hard and admirable work of Beau Biden and others, has seen that pretrial justice in that state begins with a constitutional amendment designed to set up the "no bail" side of a proper "bail/no bail" dichotomy. My dilemma comes from the fact that I have to look at reform in the long term. Accordingly, I feel the need to comment on the current version of that amendment so that other states might be able to do the same thing, only better. I do this knowing full well that enemies of bail reform will use virtually everything -- including some unknown blog -- to thwart progress.
Still, there's good reason for taking a harder look at proposed constitutional amendments. Not too long ago, Washington State had a really terrible thing happen, which caused everyone in that state to realize that their constitutional right to bail provision needed amendment. You see, their constitution only allowed the government to detain people pretrial (i.e., "no bail") when they were facing murder charges. And so when Maurice Clemmons, a very dangerous and high risk defendant, shot and killed four police officers in 2009 while released on bail for a crime other than murder, the people of Washington quickly understood that their constitution would not have allowed anyone to lawfully detain him. So Washington changed its constitution. Unfortunately, to make sure that a "Maurice Clemmons type of case" couldn't happen again, Washington only changed the constitution so that, in addition to murder, judges could also detain people facing life in prison.
It was a good opportunity wasted. Washington could have changed its existing constitutional bail provision to allow for detention based on high pretrial risk, but instead it only added another category of charges. In Washington today, high-risk pretrial defendants not facing murder or life in prison may not legally be detained, which leaves only two options for judges: follow the law and set bail so that release is actually effectuated (and thereby threatening public safety), or use money and hope that the high risk defendant can't get out of jail. Thus, Washington is not much better now than it was before the constitutional amendment.
I think we all learned from that experience. We learned that if we're going to go to the trouble of changing our constitutions, we ought to take the time to do it right. So let's take a look at Delaware's proposed constitutional amendment, albeit with the following caveat: I'm in no way saying that the proposed Delaware amendment is fatally flawed. Unlike the Washington amendment, it avoids fundamental errors, and it's also likely that the implementing statute can tidy things up even more. It takes a while to get the constitution changed in Delaware, and so I say, "keep moving forward!" This blog today is written to help all those other states in America, which, like Delaware, recognize that some constitutional amendment may be necessary for pretrial justice.
Let's start with what Delaware has already. Delaware is one of about 21 states with "broad" right to bail provisions modeled after Pennsylvania's 1682 bail law, which made the right to bail available to all "unless for capital Offenses, where proof is evident or the presumption great." In addition to these 21 states, there are about 20 more that started with broad right to bail provisions, but have, as Delaware seeks to do, amended their constitutions over time to allow for preventive detention, which is the ability to lawfully detain a defendant pretrial without going through the charade of setting conditions of release that the court hopes the defendant can't meet. The other nine states operate like the federal system -- they have no right to bail clause, and so they can relatively easily enact statutory detention provisions. The 20 states that have already amended their constitutions mostly did so back in the 1980s and 1990s, and those constitutions look a lot like the constitution in Washington; they're primarily charged based, although some have preconditions, and some even have some elements of pretrial risk built into them. The point, though, is that Delaware allows bail for all except some extremely small class of people.
That might seem sufficient, except for two things. First, the history of bail and the law intertwined throughout that history allow both "bail" (release) and "no bail" (detention), so long as we set them up and do them correctly. Put another way, states are allowed to set up their own "bail/no bail" dichotomies, and so long as they follow certain fundamental legal principles, such as making sure that the right to bail or release is the norm, it's okay to detain pretrial a certain small group of people. This generation of bail reform is focused on risk, and so the most rational (and thus likely lawful) way to separate those whom we detain from those whom we release would be based on their risk of pretrial failure, with the extremely high risk defendants being detained and the low to medium risk (and even some high risk folks) being released. The fact that we know we're able to create our own lawful "bail/no bail" dichotomies without violating the federal constitution means that we have few excuses for tolerating a system that grants people a right to bail but then effectively denies that right for a group of defendants who could rightfully labeled as "no bail" in the first place.
Second, it's likely that Delaware is basically detaining defendants already, only by using money instead of a lawfully enacted procedure that might, for example, give defendants certain procedural due process rights prior to depriving them of their liberty. This was happening in the middle of the 20th Century, and it's when all those states I mentioned earlier started enacting preventive detention constitutional amendments and statutes. The bottom line is that Delaware has a "broad" right to bail provision, but that right is probably meaningless. Defendants are likely being detained both intentionally and unintentionally using money, and so changing the whole system -- starting with the constitution -- so that the system is more rational and transparent is a good start. Oh, and I should add one more thing. If a state basically tolerates judges using money to detain high risk folks, it's practically a certainty that money will filter into everyone's case, and you will also end up detaining boatloads of low to medium risk people who just can't pay the money.
Delaware wants to enact a constitutional provision that allows detention for more than just capital offenses. Specifically, it seeks to allow for the pretrial detention of defendants facing "other such felony offenses and under such other circumstances as may be prescribed by law when no condition or combination of conditions other than detention will reasonably assure the safety of any person or the community." I suppose you could read this two ways. The first would be that Delaware is only allowing detention for an additional class of defendants charged with other felonies, and the "other circumstances" contemplated for the legislature would only address this increased class. I hope not, for that was the main problem with the constitutional amendment in Washington. The other way to read it is that felony offenses will definitely be a part of the detention eligibility net, but that the "and under such other circumstances" language gives the legislature sufficient room to design a proper "no bail" or detention scheme that is not necessarily tied only to felonies. Either way, it leaves the heavy lifting to the legislature, which can be good or bad.
The good part is that, given the leeway, the legislature can design a really good detention statute -- one that perhaps has a somewhat broad detention eligibility net based on a combination of charge and risk, but that systematically narrows that net so that those detained are very few. In this sense, the language in the constitution making sure that a precondition to detention is that "no condition or combination of conditions" will suffice to assure public safety or court appearance is a phenomenal addition. So very often in America today, judges detain defendants using money when it's clear that other conditions, virtually all non-financial, would easily provide reasonable assurance of public safety and court appearance for the vast majority of criminal defendants.
The bad part is that legislatures, historically, tend to add to statutes rather than to take away from them. Delaware must remain constantly vigilant that the legislature doesn't continually add to the types of charges and "other circumstances" that can lead to detention. This has already happened in the "charge-based" world of bail detention, with legislatures repeatedly adding to lists of, for example, "dangerous" or "violent" felonies, or by increasing crime severity to make them eligible for those designations.
This is a blog, and so I won't repeat at length what I have already written in the past (also, I should have a couple of new papers coming out soon that really provide a lot of detail in designing proper 'bail" and "no bail" dichotomies). But if you're going through the considerable bother of changing your whole constitutional bail provision, why not go all the way? This is how I would have done it.
First, I would have gotten rid of the words "bail" and "sufficient sureties" as archaic, unnecessary complex, and confusing. I love the term bail, and I've read and written more about the history of bail than most people I know. But I know when to quit. Quite simply, bail means release, but we've gotten so far from that meaning that we've grown accustomed to paradoxes (for example, to be "held on bail"), bad court opinions, release orders that don't actually lead to release, and judicial "decisions" that are based on chance. If possible (you never know exactly how wedded people are to these things) I would also have gotten rid of any of the archaic "proof evident, presumption great" language. There's really no reason to treat capital offenses differently from anything else, and a newly created constitutional release and detention provision would theoretically cover all charges and risk levels. Pennsylvania only put that in there to help more capital defendants get out of jail. I doubt that whatever weird case law that has grown up around the phrase makes as much sense today as it did in, say, nineteen thirty-something.
I would have started my constitutional provision with a paragraph outlining the right to release (the United States Supreme Court has equated the right to bail with the right to release, and the history of bail supports bail defined as release). I would have articulated a purpose that encapsulated the lawful purposes underlying the bail or release process, and, if necessary, I would have quoted from the United States Supreme Court's opinion in Salerno that we endeavor to insure that pretrial liberty remain the norm.
In my second paragraph, I would have outlined "no bail," which I would have correctly called detention. This paragraph would have allowed detention based on extremely high pretrial risk for public safety or failure to appear for court, but it would also have included provisions so that it remained "carefully limited" (another Supreme Court warning) no matter what the legislature did with it. For example, I would have used some sort of adjective for risk (such as "extremely high") and I would have tied pretrial risk to that measured by an objective, research-based risk instrument designed to predict pretrial failure. Essentially, I would have talked only about pretrial risk, not charge. Thus, if the supporting statute incorporated charges into a hybrid release and detention system, then the constitution would be final arbiter of the riskiness of any particular individual. I would then have actually defined risk (at least the outer borders) in the constitution so that the legislature wouldn't re-define it year after year based on its shifting notions of public safety, etc. Defining risk in the constitution is the hardest part, by the way, but not because we don't know how to do it. It's a political will thing.
I would then have outlined the extremely important provisions that would serve as the minimum requirements for a detention hearing, likely modeled after the federal statute. I might even have put in a different burden of proof. Overall, I've seen too many states create preventive detention provisions in their constitutions and then neglect the due process. To assure that the right to release remained meaningful, and that future practices couldn't serve as some perverted replacement for a rational and transparent detention process, I would have added a final, and crucial line stating that, as a constitutional requirement, a defendant could not be detained just because of money. Making sure that money doesn't detain is the key to doing both bail and no bail correctly. History has shown that you can enact the best procedural-due-process-laden hearings for detention, but judges won't use them if money will do the same thing quicker. Making sure that money can't detain will force judges to detain on purpose, and only after a proper hearing. They should be doing this now, but they aren't, so we really need that particular line.
In the final paragraph, I would have articulated what the legislature would need to do to enact the proper release and detention scheme. I might have added certain language that I wanted to make sure had some constitutional basis, such as the "no condition or combination of conditions" language from Delaware's proposed law, or language requiring the use of "least restrictive conditions," which is often articulated (and often ignored) as a part of the states' bail law anyway.
The great thing about this is that you can see a bit of a template here: release, detention, legislative authorization. Theoretically, you could create the nation's shortest constitutional bail clause in just three lines, or expand it into three paragraphs, or even three pages depending on the state's values.
Anyway, that's how I would have done it.
