CHAPTER 231

AN ACT TO AMEND TITLE II, CHAPTER 21, OF THE DELAWARE CODE BY REPEALING SAID CHAPTER AS IT NOW APPEARS AND ENACTING A NEW CHAPTER 21 PERTAINING TO RELEASE OF PERSONS ACCUSED OF CRIMES IN THE VARIOUS COURTS OF THIS STATE PENDING TRIAL AND TO PROVIDE FOR A SYSTEM OF BAIL WITH SURETY, BAIL WITHOUT SURETY AND THE RELEASE ON PERSONAL RECOGNIZANCE AND TO EMPOWER THE COURT TO SET FORTH CONDITIONS OF ANY RELEASE AND PROVIDING THAT THE DEPARTMENT OF CORRECTION SHALL ADMINISTER BAIL AND RECOGNIZANCE PROCEDURES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 11, Delaware Code, Chapter 21, is amended by striking out and repealing said chapter as it now appears and enacting a new Chapter 21 which shall be as follows:

CHAPTER 21. RELEASE OF PERSONS ACCUSED OF CRIMES

§ 2101. Purposes of this chapter

It is the purpose of this Chapter to reform the system of bail in the various courts of this state and to empower and equip the courts to utilize a system of personal recognizance or an unsecured personal appearance bond to be used wherever feasible consistent with a reasonable assurance of the appearance of the accused and the safety of the community in connection with the release of persons accused of crime pending a final determination of the court as to the guilt of such persons.

§ 2102. Persons charged with a capital crime

(a) A capital crime shall not be bailable, and a person so charged shall be held in custody without bail until the charge be withdrawn, reduced or dismissed or until the court shall

otherwise order after a trial which results in less than a conviction of a capital crime or except as provided in subsection (b) of this section.

(b) The Superior Court may admit to bail a person charged with a capital crime if after full inquiry, the Superior Court shall determine that there is good ground to doubt the truth of the accusation, and the burden of demonstrating such doubt shall be on the accused.

§ 2103. Release on bail or recognizance of persons charged with any other crime

Any person who is arrested and charged with any crime other than a capital crime shall be released either (a) on his own personal recognizance or (b) upon the execution of an unsecured personal appearance bond of the accused in an amount specified by the court, or (c) upon the execution of a secured appearance bond, the amount of the bond and the nature of the surety to be determined by the court. The court may also impose one or more of the conditions of release set forth in Section 2107 of this chapter. The determination of whether the accused shall be released under (a), (b), or (c) above and the conditions of the release shall be in the discretion of the court subject to the provisions of this chapter.

§ 2104. Release on personal recognizance or on unsecured personal appearance bond

(a) The court shall release a person accused of q bailable crime on his own personal recognizance or upon the execution of an unsecured personal appearance bond of the accused in an amount to be determined by the court when the court is satisfied from all the circumstances and the criteria set forth in subsection (b) of this section that it is reasonably likely that the accused will appear as required before or after conviction of the crime charged and that there is no substantial risk to the safety of the community in permitting such unsecured release.

() In determining whether the accused is likely to appear as required and that there will be no substantial risk to the safety of the community the court shall, on the basis of avail-

able information, take into consideration the nature and circumstances of the crime charged, the family ties of the accused, his employment, his financial resources, his character and mental condition, the length of his residence in the community, his record of convictions, his record of appearances at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

§ 2105. Release on bail with surety

If the court has determined that the accused shall not be released in accordance with Section 2104, it shall make a record finding of the reason or reasons for such action and shall permit the release of the accused upon the furnishing of surety satisfactory to the court in an amount to be determined by the court.

§ 2106. Determining the amount of bail

(a) In determining the amount of bail to be required to be posted as surety under Section 2105 or to be required for an unsecured personal appearance bond of the accused, the court shall not require oppressive bail but shall require such bail as reasonably will assure the reappearance of the accused, compliance with the conditions set forth in the bond and the safety of the community. In fixing the amount, the court shall also take into consideration the criteria set forth in subsection (b) of Section 2104 of this chapter.

(b) In any event, if a person is charged with an offense punishable by fine only, the amount of the bail shall not exceed double the amount of the maximum fine for each charge. When a person has been convicted of an offense and only a fine has been imposed as the sentence of the court, the amount of bail shall not exceed double the amount of the fine.

§ 2107. Conditions for release

In connection with either a secured release or an unsecured release of any person the court may also impose one or more of the following conditions :

(a) Require the person to return to the court at any time upon notice and submit himself to the orders and processes of

the court ;

(b) Place the person in the custody of a designated person or organization agreeing to supervise him;

(c) Place the person under the supervision of a pre-sentence or probation officer ;

(d) Place restrictions on the travel, associations, activities, consumption of alcoholic beverages, drugs or barbiturates, or place of abode of the person during the period of release;

(e) Require periodic reports from the person to an appropriate agent or officer of the court including the attorney for the accused ;

(f) Require psychiatric or medical treatment of the person ;

(g) Require the person to provide suitable support for his family under supervision of an officer of the court or the Family Court, with the consent of the Family Court;

(h) A person who has been convicted shall also be required duly to prosecute any post-conviction remedies or appeals, and if the case is affirmed or reversed and remanded he shall forthwith surrender himself to the court ;

() Impose any other condition deemed reasonably necessary to assure appearance as required and to carry out the purpose of this Chapter.

§ 2108. Failure to provide recognizance; secured or unsecured bond or to consent to conditions

If the accused does not provide the personal recognizance, secured or unsecured bond or if he does not agree to meet the conditions for release, he shall be held in the custody of the State Board of Correction until he cures such failure or until the court otherwise orders.

§ 2109. Modification of bail, security or conditions

Either the accused or the Attorney General may apply to the court for any modification of any determination by the court as to the decision of the type of release, the amount and nature of the bond or surety or the conditions of release. Such applica-

tion shall be at such times, upon such conditions and in such manner as the Rules of Superior Court may provide.

§ 2110. Procedure for taking bail or implementing this Chapter

The procedure for taking bail or to implement any provision of this Chapter shall be as provided by the Rules of the Superior Court.

§ 2111. Bail after transfer to another court or after conviction

Once bail has been given and a charge is pending or is thereafter filed in or transferred to a court of competent jurisdiction, the latter court may continue the original bail in that court. After conviction, the court may order that the original bail stand as bail pending appeal or deny, increase or reduce bail.

§ 2112. Penalties for non-compliance with conditions of recognizance; bond or conditions

(a) If the accused shall fail to appear as required by the recognizance or bond or shall commit any material breach of the conditions set forth in Section 2107 of this chapter, the court shall issue a warrant and cause the arrest of such person and the cancellation of any recognizance and the return to the court for a redetermination of the disposition of the accused.

(b) Upon the return of the accused before the court pursuant to subsection (a) or if the accused shall not be found, the court shall act with respect to the forfeiture of any secured or unsecured bond pursuant to the Rules of the Superior Court and shall redetermine the type of release, the amount of bail, if any, and conditions of the further release of the accused.

(c) If the accused fails to appear as required or breaches any condition of his release, he shall be presumed to have acted wilfully, and the burden shall be upon the accused to prove otherwise. The failure of the accused to appear as required or his breach of any condition of his release shall be a separate crime, and upon conviction thereof shall be punished as follows :

(1) If he was released in connection with one or more

charges of a felony prior to trial, or while awaiting sentence or

pending appeal or certiorari after conviction of one or more felonies or misdemeanors, he shall be guilty of a felony and punished by imprisonment of not to exceed five years or a fine of $5,000 or both;

(2) If he was released in connection with one or more charges of misdemeanor prior to trial, he shall be fined not more than $500 or imprisoned not more than one year, or both.

(d) Any person released pursuant to this subchapter shall notify the Court, before which his case is pending, of any changes of address or residence within five (5) days of such change. Failure to make such notification will result in constructive receipt of any subpoena issued to the person by or on behalf of the Court to the last address or residence given to the Court by that person.

(e) Nothing in this chapter shall interfere with or prevent the exercise by any court of its power to punish for contempt.

§ 2113. Administration of this chapter

(a) The State Board of Correction shall administer such provisions of this chapter as are not exclusively the province of the judges of the respective courts of this state.

(b) The State Board of Correction is authorized and empowered to make investigations relative to the release of persons charged with criminal offenses and to advise and assist the courts to carry out the purposes of this chapter.

(c) The State Board of Correction shall have the power necessary to carry out the purposes of this chapter, including subpoena power, and as shall be provided by the Rules of the Superior Court.

(d) The Commissioner of the Department of Corrections shall be authorized to employ one supervisor, and such assisting and clerical staff as may be necessary to carry out the provisions of this Act.

§ 2114. Definitions

For purposes of this chapter the following definitions shall apply:

"Attorney General" includes any Deputy Attorney General or any other prosecutor of the State, County or municipality.

"Bailable offense" is any offense not punishable by death.

"Capital Crime" includes any crime for which the punishment shall be death.

"Court" includes Superior Court, Court of Common Pleas, Municipal Court of the City of Wilmington, Justice of the Peace and, for purposes of the bail provisions where the context permits, the House Sergeant of the Wilmington City Police.

"Crime" includes any offense which is punishable by a fine or imprisonment.

"Personal recognizance" is the written recognizance of the accused that he will obey the further direction of the court.

"Record finding" is a memorandum, notation, opinion, order or other writing in the file of the case of the accused reflecting the decision made by the court.

"Secured personal appearance bond" is a bond of the accused promising his appearance in court, guaranteed by a surety, property, cash or other assets.

"Unsecured personal appearance bond" is an undertaking by the accused promising his appearance in court where, upon his failure, he will be liable for the amount of the bond, but the bond is not guaranteed by any surety or specific pledge of property or other assets.

Section 2. Chapter 33 of Title 10 of the Delaware Code, is hereby repealed. All other acts inconsistent with the revision of this act are hereby repealed.

Section 3. If any part of this act shall be held to be invalid or unconstitutional, such holding shall not affect any other part of this act.

Section 4. The passage of this act and/or any repeal in this act of any laws of this State shall not affect any existing proceeding wherein any action has been taken or any act done or

omitted under prior law. This is intended to be a general savings clause.

Section 5. The sum of $19,900.00 is appropriated to the State Board of Corrections for the fiscal year ending June 30, 1968, to pay the cost of implementing this Act.

Section 6. This Act is a supplementary appropriation and the money appropriated shall be paid by the State Treasurer out of funds in the General Fund of the State of Delaware not otherwise appropriated.

Approved January 8, 1968.