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Delaware Senate rejects second leg of constitutional amendment expanding denial of bail

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DOVER, Delaware — The state Senate dealt a resounding defeat Tuesday to a proposed constitutional amendment allowing bail to be denied for defendants charged with non-capital crimes.

The measure, which needed a two-thirds majority, or 14 votes in the 21-member chamber, received only seven votes.

Currently, bail can be denied only for first-degree murder. The proposed constitutional amendment would allow the possibility of bail being denied for 48 separate crimes categorized as violent felonies. The amendment is aimed at stopping the release of violent offenders from committing more crimes while out on bail.

"Those who sometimes commit violent crimes ... find a way to get the money and get out on bail," said the chief bill sponsor, Democrat Sen. Robert Marshall of Wilmington, a city plagued by violent crime.

But opponents said amending the constitution is not necessary, as judges already have the discretion to set high bail for defendants who may pose a danger to the community.

Chief public defender Brendan O'Neill pointed to the high-profile cases of pedophile pediatrician Earl Bradley and former Tower Hill School headmaster Christopher Wheeler.

Neither Bradley, who is serving life in prison for raping scores of young patients, nor Wheeler, sentenced to 50 years on child pornography, was able to make bail, O'Neill noted.

Critics also suggested that denial of bail was a punitive measure to keep people behind bars while awaiting trial, even though they are presumed innocent until proven guilty.

O'Neill said a provision in the legislation requiring a trial within 120 days of arrest for a person being held without bail is "a false promise" because defense attorneys often need more time than that to prepare for trial in cases involving violent felonies.

"I hope we're all prepared to build a bunch of new prisons," said Sen. Karen Peterson, D-Stanton, suggesting that passage of the amendment could lead to prison overcrowding.

But Marshall noted that even if the constitution is amended, lawmakers would still have to pass enabling legislation outlining how the new bail rules would be implemented.

"It doesn't force anything to happen," Marshall said of the constitutional amendment.

But O'Neill argued that lawmakers should not take any action until the completion of a validation study on a pilot risk-assessment program aimed at determining whether a defendant poses a risk of flight or re-arrest or is not likely to pose a safety risk to the community if released on bail.

Tuesday's rejection of the proposed constitutional amendment follows initial passage of the measure last year. Under Delaware law, constitutional amendments must be approved by two consecutive legislatures.

Last year, the bill initially fell three votes short in the House, but then received one vote more than needed after the earlier vote was rescinded. That move came after the proposal was defeated twice in the Senate before being resurrected and passed in a little-noticed midnight vote on the final day of the 2013 session.

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