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

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.

The new amendment alters that balance in a fundamental way.

It authorizes the General Assembly to designate categories of felony offenses for which a person may be denied bail entirely. Once an offense is statutorily classified as “detention-eligible,” the court may, upon certain findings, order incarceration without any opportunity to post bond.

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.

Historically, bail systems operate on the presumption that release is the rule and detention the exception. Surety provides the mechanism for accountability. When a bond is posted, the surety assumes responsibility for the defendant’s appearance. The system ties liberty to obligation, not to state custody.

Preventive detention replaces that structure with something different. It removes the option of surety altogether and substitutes confinement based on predictive judgments about future conduct.

Supporters argue that judges must still make findings of risk and apply clear evidentiary standards. That is true. But the constitutional amendment permits the legislature to predefine the pool of defendants who are eligible for total denial of bail. Once an offense is placed on that list, the right to personal surety is no longer guaranteed.

That delegation carries long-term implications.

Legislative classifications are not static. They evolve in response to political pressure, high-profile incidents, and shifting policy priorities. As detention eligibility becomes an available statutory tool, the list of qualifying offenses can expand without further constitutional amendment.

The issue is not whether courts should have tools to address serious risks too public safety. The issue is whether the constitutional right to bail — historically understood as the right to secure release through surety — should depend on legislative offense labeling.

Bail is not simply a financial condition. It is a constitutional mechanism that preserves liberty before conviction while imposing structured accountability. Preventive detention, by contrast, extinguishes that mechanism entirely for designated offenses.

Delaware has chosen to allow that extinguishment in certain categories. Whether the authority remains narrowly confined or grows over time will depend on legislative restraint and judicial enforcement.

But the constitutional line has moved.

And when the right to personal surety becomes conditional on legislative classification, the nature of bail itself changes.