Delaware’s Move Towards Preventative Detention and Making Pretrial Freedom More Difficult

In 2025, Delaware enacted a significant bail reform measure by amending its Constitution through Senate Bill 11, shifting away from a longstanding guarantee of the right to bail before conviction for all accused persons. In a recent blog post, Chris Blaylock, Sr. Vice President Advocacy and Distribution for Universal Fire and Casualty Insurance Company, writes about Delawares move towards preventative detention.

Historically, the state's Constitution ensured that individuals could secure pretrial release through sufficient sureties, preserving liberty while imposing accountability via bail bonds or personal surety. This change introduces preventive detention for certain felony offenses, allowing the General Assembly to designate categories of crimes where bail may be denied entirely, replacing the traditional system with court-ordered incarceration based on risk assessments.

The amendment empowers the legislature to define "detention-eligible" felony offenses at the classification level, rather than through individualized bail hearings, where courts can order pretrial detention upon clear and convincing evidence of risks to public safety, court appearance, or judicial integrity. Companion legislation like Senate Bill 12 supports this shift by modernizing pretrial release procedures and moving away from heavy reliance on cash bail for lower offenses, while retaining judicial discretion in some cases. Critics argue this alters the fundamental nature of bail from a mechanism of conditional liberty to one where cashless bail or no bail at all becomes possible for designated serious crimes, potentially expanding over time through legislative changes.

This Delaware bail reform initiative balances public safety concerns with due process safeguards, such as requiring prompt hearings, legal representation, and high evidentiary standards for detention. However, it raises questions about whether the right to pretrial release via bail bonds should hinge on legislative offense labeling rather than case-by-case determinations. The move reflects broader debates on cashless bail policies nationwide, prioritizing risk-based decisions over wealth-based release for high-risk felony defendants. 

Below is a brief excerpt from Blaylock's article…

Delaware’s Constitutional Amendment and the Erosion of the Right to Personal Surety
by Chris Blaylock

The legislature now has authority to determine, by category, which accused persons are eligible to lose the right to personal surety. That determination is made at the level of offense classification — not through individualized bail setting, but through legislative designation.

Delaware has amended its Constitution to permit preventive detention for certain felony offenses. With the passage of Senate Bill 11 and its implementing statute, Senate Bill 12, the state has moved away from a longstanding constitutional guarantee that all persons are bailable before conviction.

For generations, Delaware’s Constitution recognized that an accused person had the right to secure release before trial by sufficient sureties. That principle reflects a foundational premise of Anglo-American law: liberty is preserved before conviction, and accountability is secured through surety — not state confinement.  READ THE FULL ARTICLE HERE>>>