Pretrial Release | Delaware

3/13/2013

State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.

Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.

Laws

Citation in Lieu of Arrest

Issuing a citation is not presumptive. However a citation can be issued for misdemeanors. Citations can be issued by peace officers. (11 Del. C. §1907)

Pretrial Release Eligibility

State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses and violent felonies committed while on pretrial release for a violent felony. (Const. art. 1 § 12; 11 Del. C. § 2103; 11 Del. C. § 2116)

Guidance for Setting Release Conditions

State statute provides a presumption of pretrial release on personal recognizance or unsecured appearance bond. Courts are instructed to use a risk assessment when determining release of all defendants. (11 Del. C. § 2105; 11 Del. C. § 2104(a))

Pretrial Release Conditions

Law allows release on personal recognizance or an unsecured appearance bond. Common conditions of release include: commercial surety, cash deposit, property bond, other secured bond, supervision and additional requirements. (11 Del. C. § 2102, § 2105 & § 2108)

Pretrial Detention

Defendants charged with capital offenses require a hearing to deny pretrial release. (11 §2103)

Bail Bond Agent Licensure

The Department of Insurance regulates bail agents. To be licensed, applicants must meet age and residency requirements, and pass an exam. They must also not be employed as: jailers; police officers; any person acting in a judicial capacity; sheriffs, deputy sheriffs and constables; attorneys or employed in an attorney’s office; any person with arresting power or control of federal, state, county or municipal prisoners; or certain prison officials. (18 Del. C. § 4332)

Bail Bond Agent Business Practices

Bail agents are prohibited from soliciting business any place prisoners are confined or in any court. They cannot offer legal advice, recommend an attorney or make arrangements with public officials. A bail agent cannot advertise as a surety insurance company. (18 Del.C. § 4350)

Bail Forfeiture Procedure

Statute addresses standards for remission procedure. (Sup. Ct. Rules, Rule 32)

Recovery Agents

Recovery agents are overseen by a different regulatory authority than bail agents and are subject to lesser licensing requirements. (24 Del. C. § 5502)

Victims’ Rights and Protections

Pretrial release hearings are required for a violation of a protection order. (10 Del. C. § 1046)

Pretrial Diversion

Domestic relations diversion programs are authorized. (10 §1024)

Resources

Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.