Burroughs v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TYRESE BURROUGHS, §
§ No. 144, 2022
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2011011781 (N)
STATE OF DELAWARE, §
§
Appellee. §
_______________________ §
IN THE MATTER OF THE §
PETITION OF TYRESE § No. 130, 2022
BURROUGHS FOR WRIT §
OF PROHIBITION §

Submitted: June 28, 2023
Decided: August 30, 2023

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, GRIFFITHS, Justices
and NEWELL, Chief Judge,1 constituting the Court en banc.

Upon appeal from the Superior Court. AFFIRMED.

ELLIOT M. MARGULES, Esquire, OFFICE OF DEFENSE SERVICES,
Wilmington, Delaware, for Appellant Tyrese Burroughs.

ANDREW J. VELLA, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for Appellee State of Delaware.

1
Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to
complete the quorum.
TRAYNOR, Justice:

It is reasonable to conclude that a previously convicted drug dealer, who is

prohibited by law from possessing firearms but who is again arrested for drug

dealing, this time while in possession of a loaded firearm, poses a risk of danger to

the community. Even so, the past-proven and currently putative gun-toting drug

dealer says that, as a matter of federal and state constitutional law, he should have

been released into the community while his new charges were pending free of any

financial conditions to his release; money bail, according to the accused, is, to the

extent it is designed to protect public safety, prohibited. We disagree.

In arriving at our decision, we recognize that a bail system that allows a

dangerous, but affluent, defendant to gain pretrial release while a non-dangerous

defendant without bail resources is detained pending trial is a system in need of

repair. At present, our bail framework expressly discourages the latter scenario, but

recent legislative efforts to foreclose the former have come up short.

In this case, we are presented with neither of the contrasting scenarios

described above. Instead, we are asked to decide whether, in light of our state

constitutional right to bail, it is permissible to attach unaffordable financial

conditions to a dangerous defendant’s pretrial release on bail and, if it is, what

procedural protections must be observed when such bail is considered. We subject

the first question to strict scrutiny and answer in the affirmative. As to the second,
2
we hold that the determination to set cash bail must be supported by clear and

convincing evidence that (i) the defendant is a flight risk or poses a substantial risk

to the community, victims, witnesses, or other persons, and (ii) nonmonetary

conditions of release will not alleviate that risk. When such evidence is adduced,

the setting of cash bail—even at an amount that the defendant may not be able to

afford—does not offend the “sufficient sureties” clause found in Article I, § 12 of

the Delaware Constitution. And because these answers are consistent with, and yield

the same result as, the Superior Court’s decision on appeal, we affirm.

I

A

In 2019, Tyrese Burroughs was convicted of felony drug dealing. As one

consequence of that conviction, Burroughs was, from then on, prohibited from

possessing a firearm or ammunition. According to an affidavit of probable cause,

on November 25, 2020, the police caught Burroughs engaging in a hand-to-hand

drug transaction while in possession of a “Smith and Wesson Walther .380 firearm

loaded with seven live rounds.”2 Burroughs initially tried to flee but was quickly

apprehended and searched by Wilmington police. The gun was discovered in his

waistband along with fifty-eight bags of heroin and small amounts of crack-cocaine

and marijuana. Burroughs was arrested and charged with six felonies, one

2
App. to Opening Br. at A27, A43.
3
misdemeanor, and one civil violation: possession of a firearm during the

commission of a felony, possession of a firearm by a person prohibited, possession

of ammunition by a person prohibited, two counts of drug dealing, carrying a

concealed deadly weapon, resisting arrest, and possession of marijuana. Together,

these charges carried a minimum-mandatory of eight years and a statutory maximum

of 77 years in prison.

B

Following his arrest, Burroughs was brought before a Justice of the Peace

Court Magistrate who set cash bail—his firearm charges carried a presumption of

cash bail under Delaware’s bail statute—at $110,501; the top end of his SENTAC

bail-guidelines range.3 Burroughs did not post bail. Burroughs’s preliminary

hearing in the Court of Common Pleas (via Zoom) was scheduled for December 14,

2021, but because the arresting officer was on medical leave, the hearing was

continued for one week. The Court of Common Pleas did, however, entertain

3
The General Assembly established the Delaware Sentencing Accountability Commission
(“SENTAC”) in 1984. SENTAC’s “overall purpose . . . [is] to establish a system which
emphasizes accountability of the offender to the criminal justice system and accountability of the
criminal justice system to the public.” 11 Del. C. § 6580(b). SENTAC comprises four members
of the judiciary: the Attorney General or the Attorney General’s designee; the Chief Defender of
the Chief Defender’s designee; the Commissioner of Corrections or the Commissioner of
Corrections’ designee; and four other members at-large. 11 Del. C. § 6580 (a)(1)-(5). The bail
guidelines referred to above appear in the SENTAC “Benchbook,” which is updated annually and
available at https://cjc.delaware.gov/sentac. According to the Benchbook, however, “THE BAIL
GUIDELINES AND POLICY STATEMENTS [published in the Benchbook] ARE THOSE OF
THE JUSTICE OF THE PEACE COURTS AND NOT THE SENTENCING
ACCOUNTABILITY COMMISSION. THEY ARE PROVIDED [in the Benchbook] AS A
CONVENIENCE FOR USERS.” Benchbook at 142. (all capital letters in original).
4
Burroughs’s request that the court lower his bail. He did not request that his bond

be released from all financial terms, only that it not be secured by cash only. The

State opposed this request, but the court granted it in part, modifying Burroughs’s

bail to $20,000 to be secured by cash only and $14,501 subject to a secured bond.

A week later, the Court of Common Pleas conducted a preliminary hearing.

After the arresting officer described what appeared to him to be a “hand-to-hand

drug transaction”4 between Burroughs and an unidentified female, his approach to

Burroughs, Burroughs’s flight and eventual apprehension, and the discovery of the

loaded firearm and illicit drugs on Burroughs’s person, the court found probable

cause to believe that Burroughs committed the charged offenses and Burroughs was

bound over for further proceedings in the Superior Court. The court, having “heard

the actual facts,”5 acted sua sponte to “review and reset bail,”6 reinstating the original

$110,501 cash bail. Burroughs was unable to make bail and was thus detained

through the duration of his proceedings.

C

After his case was transferred to the Superior Court, Burroughs filed a

“Motion for Modification of Bail,” in which he requested, “[d]ue to his inability to

4
App. to Opening Br. at A57.
5
Id. at A58.
6
Id.
5
post bail, . . . that his bail be converted to an unsecured or lower secured amount.” 7

Burroughs’s motion invoked, among other things, Article I, § 12 of the Delaware

Constitution, which provides that “[a]ll prisoners shall be bailable by sufficient

sureties, except for capital offenses . . . .” A Commissioner of the Superior Court

held a hearing on Burroughs’s motion, during which the State argued his financial

conditions of release should be maintained because, in its view, there was strong

evidence supporting his conviction and ample facts—given Burroughs’s disregard

of his person-prohibited status—demonstrating that he posed a serious safety risk to

the public. The State also argued that this was Burroughs’s “third set of drug dealing

charges,”8 although only one of the prior sets had resulted in conviction. The State

observed that the seriousness of Burroughs’s criminal behavior appeared to be

“escalating” over time and emphasized the presence of a loaded firearm when

Burroughs was arrested. All these factors, for the State, weighed in favor of cash

bail at the high end of the SENTAC guidelines range. The Commissioner, in

apparent agreement with the State, denied Burroughs’s motion, announcing that

“[t]he bail shall remain as previously set.”9

7
Id. at A63, A68.
8
Id. at A369.
9
App. to Opening Br. at A1, D.I. 4.
6
 Burroughs was not deterred; the following day he filed a “Motion for Non-

Financial Conditions of Release” in which he argued, in what he has since

characterized as an as-applied challenge to the amended bail statute,10 that

(1) Delaware’s Bail practices violate the Equal Protection Clause of the
Fourteenth Amendment by disproportionately detaining indigent
pretrial defendants[;] . . . (2) [Burroughs’s] Fourteenth Amendment
Substantive Due Process Rights are violated by those same practices in
that, without the constitutionally requisite justification, he has been
entirely deprived of his fundamental right of liberty; and (3) Procedural
Due Process requirements necessary to prevent erroneous deprivation
of liberty are not provided under Delaware rules.11
A Superior Court Commissioner rejected these arguments, holding that “the

State ha[d] sufficiently demonstrated that [Burroughs] poses a flight risk and a

danger to the community if released, and after considering all less restrictive

alternatives ([i.e.,] non-monetary conditions of release) . . . that monetary bail is

appropriate [given] the State’s goals of ensuring [he] appears at his future hearings

and safety of the community.”12 The Commissioner thus concluded that Burroughs

“h[ad] not established that his right to equal protection was violated, nor that he was

10
See Opening Br. at 4 (“Burroughs has not argued the governing statutes are facially
unconstitutional.”).
11
App. to Opening Br. at A73. According to the Commissioner’s September 7, 2021 Order, when
the court denied Burroughs’s Motion for Modification of Bail on January 5, 2021, “it was agreed
that the constitutional arguments would be preserved for future briefing.” Opening Br., Ex. A at
5 n.12 (“Comm’r Order”). We note that neither the transcript of the January 5 hearing nor the
Superior Court docket discloses the source of this agreement. Moreover, the “constitutional
arguments” raised in the “Motion for Non-Financial Conditions for Release” differ markedly from
the constitutional issues flagged in Burroughs’s Motion for Modification of Bail.
12
Comm’r Order at 52–53.
7
deprived of his right to substantive and procedural due process.” 13 The

Commissioner also rejected Burroughs’s argument under the “sufficient sureties”

clause of the Delaware Constitution.

D

Burroughs filed a “Motion for Review of Commissioner’s Order,” arguing

that the Commissioner erred by failing to test his motion under the strict-scrutiny

standard of review on the grounds that he either fell into a suspect class by virtue of

his indigency or that his pretrial detention deprived him of his fundamental liberty

right under substantive-due-process principles. If the Commissioner had properly

conducted a strict-scrutiny review, Burroughs contended, then the State would have

had to prove by clear and convincing evidence that “no other non-monetary

conditions of release [could] accomplish” its “compelling interest in preventing

crime.”14 Burroughs questioned the State’s ability to meet this burden.

Burroughs also argued that the Commissioner’s order undermined his

procedural-due-process rights and that his cash bail violated Article I, § 12 of the

Delaware Constitution, which provides, by Burroughs’s lights, “a right to bail [that]

is violated when bail is set at an amount deliberately calculated to incarcerate.”15

13
Id. at 53.
14
App. to Opening Br. at A332–33.
15
Id. at A327.
8
 The Superior Court Judge reviewing the Commissioner’s order rejected each

of Burroughs’s contentions. Starting with his equal-protection claim, the court noted

that “poverty, standing alone, is not a suspect classification” meriting heightened

scrutiny.16 The court thus tested Burroughs’s claim under the rational-basis standard

of review, determining that “Delaware’s bail statute, as applied to [Burroughs], [was

valid as] rationally related to ensuring public safety[.]”17

Addressing his substantive-due-process claim, the Judge, “[f]or purposes of

this case alone, . . . assume[d] [that] the attachment of an unaffordable bail that

results in detention implicates a defendant’s fundamental right of liberty, triggering

a strict scrutiny standard of review of Delaware’s bail statute.”18 Relying on the

United States Supreme Court’s pronouncement in United States v. Salerno,19 the

court found the State’s “interest in preventing crime by arrestees [] ‘both legitimate

and compelling.’”20 The court concluded, moreover, that “the State presented clear

and convincing evidence . . . that no less restrictive alternative other than cash bail

assigned to [Burroughs] would satisfy the government’s compelling interest in

protecting the public.”21 Or, to put it another way, “[n]o other means exist[ed] that

would be less restrictive to ensure [that Burroughs] d[id] not possess another firearm

16
State v. Burroughs, 2022 WL 1115769, at *5 (Del. Super. Ct. Apr. 13, 2022).
17
Id. at *6.
18
Id.
19
481 U.S. 739 (1987).
20
2022 WL 1115769, at *7 (quoting Salerno, 481 U.S. at 749).
21
Id.
9
while in public other than setting a high monetary bail.”22 In a footnote, the court

expanded on this reasoning:

The Defendant already was prohibited by law from possessing a
firearm, but nonetheless was arrested with one allegedly in his
possession. Non-monetary conditions alone therefore were unlikely to
deter him from doing so again. In contrast, the threat of forfeiting a
high cash bail was the only tool available to the Commissioner to
achieve the State’s compelling interest in preventing such conduct.23

The court also rejected Burroughs’s procedural-due-process claim after

finding that he “was represented by competent counsel, his proceedings took place

in open court before a neutral decision-maker, and he was provided notice of the

charges.”24 And because Burroughs’s bail fell within the SENTAC guidelines and

otherwise met the requirements of the bail statute, the court found that it did not

violate the requirement of Article I, § 12 of the Delaware Constitution that

defendants “shall be bailable upon sufficient sureties.”25

E

Immediately following the release of the Superior Court’s opinion—that is,

on the same day—Burroughs requested a writ of prohibition from this Court

directing that his “bail be modified to an amount without financial conditions” on

the grounds that the Superior Court was “constitutionally prohibited from imposing

22
Id.
23
Id. at *7 n.69.
24
Id. at *8.
25
Id.
10
bail as currently ordered.”26 One day later, however, Burroughs pleaded guilty to

possession of a firearm during the commission of a felony and illegal possession of

a controlled substance and was sentenced on that day to three years in prison,

effective as of the date of his arrest. Burroughs promptly filed a direct appeal

focused primarily, like his writ of prohibition, on the constitutionality of his

unaffordable cash bail.

Neither party alerted this Court to Burroughs’s guilty plea and sentence and

the effect they might have on the pending appeal and petition for writ of prohibition.

We nevertheless requested supplemental briefs addressing whether Burroughs’s

guilty plea mooted his petition for a writ of prohibition. After receipt of the

supplemental briefs and the parties’ briefs in Burroughs’s direct appeal, we

consolidated Burroughs’s appeal and petition for oral argument and decision.

II

As he did in the Superior Court, Burroughs argues on appeal that his pretrial

detention—the product of a cash bail he could not afford—violated his rights under

the Equal Protection Clause, substantive and procedural due process, and Article I,

§ 12 of the Delaware Constitution. “In deciding legal or constitutional questions,

we apply a de novo standard of review.”27 But we defer to the trial court’s factual

26
Complaint in Proceedings for Extraordinary Writ, In the Matter of the Petition of Tyrese
Burroughs for a Writ of Prohibition (Del. Apr. 13, 2022) (No. 130, 2022).
27
Wheeler v. State, 296 A.3d 363, 372 (Del. 2023).
11
determinations “if they are based upon competent evidence and are not clearly

erroneous.”28

III

A

Our analysis starts with the threshold issue of mootness. It is undisputed that

Burroughs’s guilty plea and sentence resulted in incarceration that exceeded, but

gave credit for, the span of his pretrial detention. Typically, even though a dispute

might have been justiciable when litigation is commenced, the action will be

dismissed as moot if that controversy ceases to exist.29 Here, Burroughs concedes

that “[t]he underlying controversies—which stem from the legality of [his] pretrial

detention and the corresponding procedures—ceased on April 14, 2022[,] when [he]

was convicted via guilty plea.”30

There are two generally recognized exceptions to the mootness doctrine:

“situations that are capable of repetition but evade review or matters of public

importance.”31 Burroughs argues that his claims regarding the constitutionality of

Delaware’s cash-bail system meet both exceptions; his is a situation capable of

28
Burrell v. State, 953 A.2d 957, 960 (Del. 2008).
29
Gen. Motors Corp. v. New Castle Cnty., 701 A.2d 819, 823 (Del. 1997).
30
Petitioner’s Supplemental Submission Regarding Whether Petitioner’s Guilty Plea Moots the
Petition for Writ of Prohibition, In the Matter of the Petition of Tyrese Burroughs for a Writ of
Prohibition (Del. July 7, 2022) (No. 130, 2022).
31
Gen. Motors Corp., 701 A.2d at 823 n.5.
12
repeating yet evading review and the issues he raises are a matter of public

importance.32 We agree.

As the Supreme Court remarked in Gerstein v. Pugh,33

[p]retrial detention is by nature temporary, and it is most unlikely that
any given individual could have his constitutional claim decided on
appeal before he is either released or convicted. The individual could
nonetheless suffer repeated deprivations, and it is certain that other
persons similarly situated will be detained under the allegedly
unconstitutional procedures. The claim, in short, is one that is distinctly
‘capable of repetition, yet evading review.’34

To state the obvious, the constitutionality of our bail system is of great

importance to the administration of criminal justice. Recent legislative efforts—

some successful and others that have failed—attest to this fact. But the speed with

which a typical criminal case moves from arrest to disposition and the unavailability

of appellate review of interlocutory orders in criminal cases combine to deprive this

Court of the chance to weigh in on this important issue. Thus, even though the

claims Burroughs presents in this appeal are moot as to him, we will yet consider

their merits.

32
Although this Court noted in Radulski for Taylor v. Delaware State Hosp., 541 A.2d 562, 566
(Del. 1988) that “[t]he public-interest exception to the mootness doctrine is usually applied to
issues which are ‘capable of repetition, yet evading review’[,]” the Court has also acknowledged
a standalone public interest exception. See Gen. Motors Corp., 701 A.2d at 823 n.5 (recognizing
the “two . . . exceptions to the mootness doctrine [a]s situations that are capable of review or
matters of public importance.”); State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 633 (Del.
2013) (same); McDermott Inc. v. Lewis, 531 A.2d 206, 211 (Del. 1987) (holding that “where the
question is of public importance, and its impact on the law is real, this Court has recognized an
exception to the [mootness doctrine].”).
33
420 U.S. 103 (1975).
34
Id. at 110 n.11.
13
 B

Our task is complicated by Burroughs’s indecision as to whether he is

mounting a facial challenge to Delaware’s bail system or a challenge to the system

as it was applied to him. To be sure, at oral argument in this Court, Burroughs

emphasized that his was an as-applied challenge. But that statement is at odds with

the positions he took in the Superior Court and the categorical claims found in his

briefs in this Court.

In the Superior Court, for example, Burroughs’s equal-protection claim was a

broad-based challenge to “money bail based pretrial confinement.”35 His

substantive-due-process claim in the Superior Court, for another example, similarly

takes aim at money bail as it is applied generally, and not specifically as it affected

him.36 Indeed, the expert he tendered in support of this challenge had nothing to say

about Burroughs but, instead, opined as to the inefficacy of secured money bonds

and the adverse consequences of pretrial detention for all detainees.37 Likewise,

Burroughs’s procedural-due-process claim in the Superior Court did not focus on

the process Burroughs was afforded; rather, it was that “Delaware does not provide

sufficient procedural safeguards prior to issuing unaffordable bail order[s].”38

35
App. to Opening Br. at A74.
36
Id. at A77.
37
See id. at A91.
38
Id.
14
 With some minor exceptions, Burroughs’s focus on appeal also challenges the

use of unaffordable money bail as a general matter and argues that, if it is to be used,

the defendant must be afforded certain procedural protections, including a “clear and

convincing evidence” standard. Thus, despite Burroughs’s attempt to fix our

attention exclusively on how the bail statute was applied to him, we see his challenge

as more expansive than that. This, and our inclination to address Burroughs’s

arguments because of their broader ramifications even though they are moot as to

him, lead us to frame our analysis in broader terms.39 With these considerations in

mind, we address the following questions:

1. Does the Delaware bail system violate the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution?

2. Does the Delaware bail system violate substantive-due-process
principles derived from the Fourteenth Amendment?

3. Was Burroughs afforded procedural due process in connection
with the setting and review of the conditions of pretrial release?

39
Decisions of this Court support our decision to treat Burroughs’s claim as a facial challenge to
the amended bail statute despite his insistence that he is levying an as-applied attack. See
Delaware Bd. of Med. Licensure & Discipline v. Grossinger, 224 A.3d 939, 956 (Del. 2020) (“We
note preliminarily that, although Dr. Grossinger frames his argument as an as-applied challenge to
the vagueness of the Regulations, his challenge is actually a facial one.”); Hazout v. Tsang Mun
Ting, 134 A.3d 274, 287 (Del. 2016) (“As-applied challenges are well-understood, and striking a
provision by judicial fiat is something that should result from a facial challenge to the validity of
a statute.”). See also John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (“The label is not what
matters. The important point is that plaintiffs’ claim and the relief that would follow . . . reach
beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards
for a facial challenge to the extent of that reach.”).
15
 4. Did Burroughs’s bail run afoul of Article I, §12 of the Delaware
Constitution?
IV

A

Because we read Burroughs’s appeal as making a facial challenge to the

amended bail statute, we begin our analysis with a general overview of Delaware’s

bail system, including the genesis of recent revisions to the statute.

To understand this system, one must consult an amalgam of interconnected

text in the Delaware Constitution, Chapter 21 of Title 11 of the Delaware Code, the

bail guidelines published by SENTAC, and the Special Rule of Criminal Procedure

for Pretrial Release promulgated by this Court. This endeavor starts with Article I,

§ 12 of the Delaware Constitution, which provides that:

All prisoners shall be bailable by sufficient sureties, unless for capital
offenses when the proof is positive or the presumption great; and when
persons are confined on accusation for such offenses their friends and
counsel may at proper seasons have access to them.40
This provision has been interpreted as conferring on defendants in Delaware

a general right to bail,41 which precludes state judges from ordering preventive

40
A similar provision appears in Delaware’s two previous constitutions—the Constitutions of
1792 and 1831. Neither the Declaration of Rights and Fundamental Rules of the Delaware State
enacted on September 11, 1776, nor the Constitution of the State of Delaware adopted nine days
later contains such a provision.
41
See In re Steigler, 250 A.2d 379, 382 (Del. 1969) (“Article I, [§] 12 . . . grants a constitutional
right to bail in all offenses, including capital offenses upon the stated condition, and does not limit
the right in terms of indictment.”).
16
detention without bail for individuals not charged with a capital offense.42 As a

result, courts’ only option for incapacitating dangerous non-capital defendants

pending trial was through the imposition of unaffordable cash bail,43 which, used

liberally, meant that “dangerous defendants with wealth [were] able to obtain [their]

release even if they pose[d] a risk of harm to the public or a specific person” while

defendants without access to similar resources were not.44

In 2018, in an effort to alleviate this inequity, the General Assembly adopted

significant revisions to Chapter 21 aimed at “modernizing the pretrial process” and

reducing the “unnecessar[y] det[ention] [of] individuals who lack funds for their

release.”45 To that end, the amended bail statute includes a presumption in favor of

non-financial conditions of release where “it is reasonably likely that the defendant

will appear as is required before or after the conviction of the crime charged and

42
See State v. Miller, 2003 WL 231612, at *1 (Del. Super. Ct. Jan. 31, 2003) (finding it
“inconceivable that the provisions of section 12 of article 1 of the Delaware Constitution would
permit the legislature to mandate pretrial detention without bail” in any non-capital cases).
43
See State v. Perkins, 2004 WL 1172894, at *1–2 (Del. Super. Ct. May 21, 2004) (denying
defendant’s motion to modify $1,115,000 cash bail and noting the commissioner’s “recogni[tion]
that . . . Delaware’s statutory bail scheme specifically embraces the notion of ‘preventive
detention,’ i.e., pretrial detention for the sake of preventing the accused from posing a danger to
the community.”).
44
Del. S.B. 221 syn., 149th Gen. Assem. (2018), available at
https://legis.delaware.gov/BillDetail?LegislationId=26736.
45
Del. H.B. 204 syn., 149th Gen. Assem. (2018), available at
https://legis.delaware.gov/BillDetail?LegislationId=25863.
17
there is no substantial risk to the safety of the community in permitting such

unsecured release.”46

This presumption is reversed, however, for defendants charged with one of

the signal offenses enumerated in § 2107 of the amended statute.47 Signal offenses

include any class A felony, rape, robbery, felony domestic violence offenses, serious

weapons offenses and the like. When dealing with a signal offense, courts are

presumed to “set conditions of release bond guaranteed by financial terms in an

amount within or above the guidelines published by [SENTAC] for that offense and

secured by cash only[,]”48 with the goal of “requir[ing] such bail as reasonably will

assure the reappearance of the defendant, compliance with the conditions set forth

in the bond, and the safety of the community.”49 To assist in this inquiry, the

amended statute instructs the bail-setter to consider

the nature and circumstances of the crime charged, whether a firearm
was used or possessed, the possibility of statutory mandatory
imprisonment, whether the crime was committed against a victim with
intent to hinder prosecution, the family ties of the defendant, the
46
11 Del. C. § 2105(a). See also 11 Del. C. § 2101 (“Each court shall utilize a system of pretrial
release imposing reasonable nonmonetary conditions of release when those conditions adequately
provide a reasonable assurance of the appearance of the defendant at court proceedings, the
protection of the community, victims, witnesses and any other person, and to maintain the integrity
of the judicial process.”).
47
Although the signal offenses were not incorporated into Chapter 21 until June 30, 2021 (see Del.
S.S. 1 for S.B. 7, 151st Gen. Assem. (2021), available at
https://legis.delaware.gov/BillDetail/78868), they were applicable to Burroughs through the
Interim Special Rule of Criminal Procedure for Pretrial Release promulgated by this Court to guide
the implementation of the amended bail statute (later replaced by the Special Rule of Criminal
Procedure cited in this opinion).
48
11 Del. C. § 2107(c).
49
11 Del. C. § 2107(a).
18
 defendant’s employment, financial resources, character and mental
condition, the length of residence in the community, record of
convictions, habitual offender eligibility, custody status at time of
offense, history of amenability to lesser sanctions, history of breach of
release, record of appearances at court proceedings or of flight to avoid
prosecution or failure to appear at court proceedings.50

To further reduce unnecessary pretrial detentions, even in the face of a signal

offense, the amended statute requires courts to conduct a review of bail conditions

for any defendant “who remains detained after 72 hours from [his] initial

presentment because he is unable to meet conditions of pretrial release,” with such

review occurring “within 10 days from the date of detention.”51 Moreover, under

the Special Rule of Criminal Procedure for Pretrial Release, which guides the

implementation of Chapter 21, judges are required to consider a defendant’s

financial circumstances when imposing cash bail52 and set forth findings on the

record as to why “a condition[] of release bond guaranteed by financial terms is or

is not necessary . . . .”53

But the 2018 amendments to the bail statute did not eliminate the problem

identified in the synopsis of one of the operative bills—that wealthy but dangerous

defendants could still gain pretrial release, while similarly dangerous defendants

50
11 Del. C. § 2105(b).
51
11 Del. C. § 2110(a).
52
Super. Ct. R. Crim. P. 5.2(m).
53
Super. Ct. R. Crim. P. 5.2(k).
19
without bail resources could not. This prompted an initiative to amend the Delaware

Constitution.

In the summer of 2019, an Act was introduced in the General Assembly,

proposing that Article I, § 12 be amended to allow the preventive detention without

bail of persons accused of certain felonies when “[t]he proof is positive and the

presumption great” that the accused had committed the felony. The proposed

amendment provided, moreover, that, to support preventive detention without bail,

the proof must be “clear and convincing that no condition or combination of

conditions other than detention will reasonably assure the person’s appearance in

court when required, or protect the safety of any other persons or the community, or

prevent the person from obstructing or attempting to obstruct justice.”54

Both Houses of the 151st General Assembly approved the proposed

amendment to Article I, § 12 in 2022. But amending the Delaware Constitution is a

“‘two-legged’ process requiring the approval of two-thirds of the members of both

Houses by two successive General Assemblies[.]”55 And because the 152nd General

54
Del. S.B. 151., 150th Gen. Assem. (2019), available at
https://legis.delaware.gov/BillDetail?LegislationId=47897. According to the General Assembly’s
website, this version of the amendment was “[i]ntroduced on 7/31/19” and “[a]wait[ed]
consideration in Committee. An identical bill—Senate Bill No. 11—was introduced in the 151st
General Assembly in April 2021, passed by the Senate in May 2022, and passed by the House of
Representatives in June 2022. S.B. 11, 151st Gen. Assem., available at
https://legis.delaware.gov/BillDetail?LegislationId=68641.
55
Albence v. Higgin, 295 A.3d 1065, 1077 & n.66 (Del. 2022) (citing Del. Const. art. XVI, § 1
and noting that there are actually two procedures for amending our constitution. It has been
observed that the second procedure which authorizes the submission of proposals to revise the
20
Assembly, which commenced in 2023 with a second regular session to occur in

2024,56 has not yet acted on the second leg of the amendment, Article I, § 12 and its

bail requirement for non-capital offenses stands.

B

Against this backdrop, we proceed to Burroughs’s arguments regarding the

unconstitutionality of Delaware’s bail system, starting with his claim that the

statute’s embrace of unaffordable cash bail violates the Equal Protection Clause of

the Fourteenth Amendment by unjustly discriminating against defendants with

insufficient bail resources.

The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o

State shall . . . deny to any person within its jurisdiction the equal protection of the

laws.”57 In practice this language guarantees “a right to be free from invidious

discrimination in statutory classifications and other governmental activity.”58 When

asked to decide whether a government action deprives a class of citizens of the rights

afforded to them by the Constitution, a court must first determine whether the

constitution to a constitutional convention, “has fallen out of practice . . . [and] is probably
unconstitutional under the United States Constitution.”). See Randy J. Holland, The Delaware
State Constitution 286 (2d ed. 2017).
56
See 29 Del. C. § 701.
57
U.S. Const. amend. XIV, § 1.
58
Harris v. McRae, 448 U.S. 297, 322 (1980).
21
challenged act discriminates against a suspect class.59 If so, then strict scrutiny is

applied to test the act’s validity.60 If not, then rational-basis review applies.61

The rational-basis standard is highly deferential—it clothes a statute in a

“strong presumption of validity,” requiring plaintiffs to prove the absence of “a

rational relationship between the disparity of treatment and some legitimate

governmental purpose.”62 Put differently, statutory “classification[s] [reviewed

under the rational basis test] must be upheld against [an] equal protection challenge

if there is any reasonably conceivable state of facts that could provide a rational basis

for the classification.”63 Strict scrutiny, on the other hand, requires the state to

demonstrate a compelling, rather than merely legitimate, governmental purpose.64

Strict scrutiny requires a “daunting two-step examination,” which the governmental

action will survive only where the state demonstrates that the classification is used

to “further compelling governmental interests,” and “narrowly tailored—meaning

necessary—to achieve that interest.”65

59
See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973) (“We must decide, first,
whether the Texas system of financing public education operates to the disadvantage of some
suspect class or impinges upon a fundamental right explicitly or implicitly protected by the
Constitution, thereby requiring strict judicial scrutiny.”).
60
Id.
61
Id.
62
Heller v. Doe, 509 U.S. 312, 319–20 (1993).
63
Id. at 320.
64
Id.
65
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141,
2162 (2023) (citing Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 311–12 (2013)); see also Doe
v. Wilmington Hous. Auth., 88 A.3d 654, 666 (Del. 2014).
22
 The list of inherently suspect classifications includes race, color, religion, and

ancestry.66 “Poverty, standing alone[,] is not a suspect classification.”67 Burroughs

concedes this point but maintains that his claim requires heightened scrutiny because

of the general rule that “a state cannot condition a person’s liberty on a monetary

payment she cannot afford unless no alternative measure can meet the state’s

needs.”68 In invoking this rule, Burroughs relies on the United States Supreme

Court’s decisions in Griffin v. Illinois69 and Bearden v. Georgia.70

But both Bearden and Griffin dealt with post-conviction issues, not pretrial

detention. In Griffin, the Supreme Court held that indigent defendants were deprived

of their right under state law to adequate appellate review when they were denied

access to trial transcripts that non-indigent defendants were able to purchase.71 The

denial of appellate review based on indigency potentially deprived defendants of the

“correct adjudication of guilt or innocence.”72 In Bearden, after the defendant

pleaded guilty to burglary and theft, the state considered “the goals of punishment

66
Turnbull v. Fink, 668 A.2d 1370, 1379–80 (Del. 1995).
67
Harris, 448 U.S. at 323.
68
Opening Br. at 24.
69
351 U.S. 12 (1956).
70
461 U.S. 660 (1983).
71
See Griffin, 351 U.S. at 16–18 (“Plainly the ability to pay costs in advance bears no rational
relationship to a defendant’s guilt or innocence and could not be used as an excuse to deprive a
defendant of a fair trial. . . . There is no meaningful distinction between a rule which would deny
the poor the right to defend themselves in a trial court and one which effectively denies the poor
an adequate appellate review accorded to all who have money enough to pay the costs in
advance.”).
72
Id. at 18–19.
23
and deterrence” and sentenced him under Georgia’s First Offender’s Act to four

years’ probation on the condition that he pay a $500 fine and $250 in restitution.73

Bearden paid $200 but was unable to pay the $550 outstanding balance and his

probation was revoked.74 This revocation “turned a fine into a prison sentence,”75

based on no other apparent basis than Bearden’s indigency.76

Here we deal with the regulatory matter of pretrial detention, not the

adjudication of guilt or post-conviction sentencing.77 Bail is used to detain a

defendant under limited circumstances, not in order to punish, but to “adequately

provide a reasonable assurance of the appearance of the defendant at court

proceedings, the protection of the community, victims, witnesses and any other

person, and to maintain the integrity of the judicial process.”78

Neither Bearden nor Griffin held that indigency is a suspect classification or

applied strict scrutiny to reach their respective holdings.79 We thus see no reason to

73
Bearden, 461 U.S. at 662, 671–72.
74
Id. at 663.
75
Id. at 674.
76
See id. at 672 (“If the probationer could not pay despite sufficient bona fide efforts to acquire
the resources to do so, the court must consider alternate measures of punishment other than
imprisonment. Only if alternate measures are not adequate to meet the State’s interests in
punishment and deterrence may the court imprison a probationer who has made sufficient bona
fide efforts to pay.”).
77
See Salerno, 481 U.S. at 746 (discussing that pretrial detention under the Bail Reform Act is
“regulatory, not penal[.]”).
78
11 Del. C. § 2101.
79
For Griffin, see supra note 71. For Bearden, see Bearden, 461 U.S. at 666–67 (“Whether
analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy
slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as ‘the nature
of the individual interest affected, the extent to which it is affected, the rationality of the connection
24
depart from the widely accepted principle that “financial need alone [does not]

identif[y] a suspect class for purposes of equal protection analysis.”80

Accordingly, because Burroughs cannot demonstrate that Delaware’s bail

statute targets a suspect class, his claim is assessed under the deferential

rational-basis standard of review. And it is clear to us that the statute meets this

standard: by imposing a cash-based barrier to the pretrial release of dangerous

defendants and those at risk of fleeing the state, Delaware’s bail scheme is rationally

related to the government’s legitimate—and compelling81—interest in ensuring

public safety and reappearance at judicial proceedings.

C

But the analysis thus far only forecloses one route to strict scrutiny. A second

route—not yet travelled—is through substantive due process.

The Due Process Clause of the Fifth Amendment, made applicable to the

states through the Fourteenth Amendment, provides that “[n]o person shall . . . be

between legislative means and purpose, [and] the existence of alternative means for effectuating
the purpose . . .’”) (quoting Williams v. Illinois, 399 U.S. 235, 260 (Harlan, J., concurring)).
80
Maher v. Roe, 432 U.S. 464, 471 (1977).
81
See Salerno, 481 U.S. at 739, 749–50 (“[t]here is no doubt that preventing danger to the
community is a legitimate regulatory goal” and the “[t]he government’s interest in preventing
crime by arrestees is both legitimate and compelling.”). Salerno further explains that the
government’s already legitimate and compelling interest “is heightened when the Government
musters convincing proof that the arrestee, already indicted or held to answer for a serious crime,
presents a demonstrable danger to the community. Under these narrow circumstances, society’s
interest in crime prevention is at its greatest.”
25
deprived of life, liberty, or property, without due process of law.”82 Substantive due

process prevents the government from “engaging in conduct that ‘shocks the

conscience,’ or interferes with rights ‘implicit in the concept of ordered liberty.’”83

Consequently, if a state regulation affects a fundamental right—such as life, liberty,

or property—courts will subject that statute to exacting strict-scrutiny review.84

Burroughs argues that pretrial liberty is a fundamental right whose deprivation

triggers substantive-due-process protections and strict-scrutiny testing. To pass this

test, Burroughs contends, the State must show “clear and convincing evidence that

money bail is necessary and the least restrictive means of addressing a compelling

interest.”85 Two assumptions are implicit in Burroughs’s conception of the strict-

scrutiny standard as he applies it to the facts of his case: (1) that pretrial detention

via unaffordable bail infringes on a fundamental right; and (2) that Delaware’s bail

statute must apply the evidentiary standard of clear and convincing evidence to pass

constitutional muster. In our view, Burroughs’s argument on this point conflates the

constitutionality of our bail system and, to the extent that the system passes

constitutional muster, the procedural protections that are required to ensure that the

82
Id. at 746. See Dorsey v. State, 761 A.2d 807, 815 (Del. 2000) (discussing the incorporation
doctrine by which “the United States Supreme Court began to hold that selected provisions of the
federal Bill of Rights also afforded protection against state action by virtue of the Due Process
Clause of the Fourteenth Amendment.”).
83
Salerno, 481 U.S. at 746 (citing Rochin v. California, 342 U.S. 165, 172 (1952) and Palko v.
Connecticut, 302 U.S. 319, 325–26 (1937)).
84
See supra note 82.
85
Opening Br. at 8 n.6.
26
system is fairly administered. We disentangle these issues, addressing first

Burroughs’s substantive-due-process challenge to the bail system and then his

procedural-due-process concerns as they relate to him individually.

i

The Supreme Court, in United States v. Salerno, upheld the constitutionality

of a federal statute permitting the pretrial detention of a defendant upon the

government’s showing “by clear and convincing evidence after an adversary hearing

that no release conditions ‘will reasonably assure . . . the safety of any other person

and the community.’”86 In reaching its decision, the court recognized the

“fundamental nature” of an “individual’s strong interest in liberty[,]”87 weighed it

against the government’s “legitimate and compelling” interest in “preventing crimes

by arrestees[,]”88 and concluded that, in situations where “an arrestee presents an

identified and articulable threat to an[other] [] or the community,”89 the individual’s

liberty interest could be “subordinated to the greater needs of society.”90

Although jurisdictions are admittedly split as to whether Salerno considered

pretrial detention as infringing on a fundamental right,91 we believe that where, as

86
Salerno, 481 U.S. at 741.
87
Id. at 750.
88
Id. at 749.
89
Id. at 751.
90
Id. at 750–51.
91
See Comm’r Order at 23–29 (discussing the jurisdictional split between courts interpreting
Salerno).
27
here, a trial court has the discretion to issue monetary conditions of release secured

by cash in an amount above a defendant’s ability to pay after considering his

financial circumstances, such bail operates as a de facto detention implicating the

defendant’s fundamental liberty right. The point was expressed well by the Supreme

Judicial Court of Massachusetts in Brangan v. Commonwealth. The Brangan court

concluded that “where a judge sets bail in an amount so far beyond a defendant’s

ability to pay that it is likely to result in long-term pretrial detention, it is the

functional equivalent of an order for pretrial detention, and the judge’s decision must

be evaluated in light of the same due process requirements applicable to such a

deprivation of liberty.”92

We thus agree with Burroughs’s position that principles of substantive due

process require Delaware’s bail statute to satisfy strict-scrutiny review. And we

believe that the statute, by being narrowly tailored to advancing the State’s

compelling interests in protecting community safety and reducing risk of flight,93

meets this exacting standard. Our revised system of bail requires judges to make

individualized assessments regarding a defendant’s right to financial or non-

financial conditions of release; mandates that the application of cash bail be

supported, in writing, by articulable facts; and commands the judge to consider the

92
Brangan v. Commonwealth, 80 N.E.3d 949, 965 (Mass. 2017).
93
See Salerno, 481 U.S. at 754–55 (identifying both risk of flight and community safety as
compelling interests).
28
defendant’s risk profile and individual financial circumstances. Any defendant

detained pretrial is, moreover, entitled to a prompt review of his conditions of bail.

These requirements, along with the “clear and convincing evidence” standard we

discuss next ensure that cash bail is employed in a manner that is narrowly tailored

to advancing the State’s compelling interests.

ii

But just because the bail statute satisfies substantive-due-process concerns

does not mean that it passes muster under procedural-due-process principles, which

provide that “even when government action depriving a person of life, liberty, or

property survives substantive due process scrutiny, it must still be implemented in a

fair manner.”94 For Delaware’s amended bail statute to be fair, Burroughs contends,

the State must, when seeking the imposition of unaffordable cash bail, present clear

and convincing evidence of a defendant’s dangerousness or risk of flight. The

protections built into the statute are not, in other words, sufficient on their own to

meet demands of procedural due process without the adoption of the “clear and

convincing evidence” standard. We agree.

The United States Supreme Court’s decision in Addington v. Texas95 supports

this view. There, the court considered the standard of proof required by the

94
Salerno, 481 U.S. at 746 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
95
441 U.S. 418 (1979).
29
Fourteenth Amendment “to commit an individual involuntarily for an indefinite

period to a state mental hospital[,]”96 concluding that because “civil commitment for

any purpose constitute[d] a significant deprivation of liberty[,]” 97 “due process

require[d] the state to justify confinement by proof more substantial than a mere

preponderance of the evidence.”98 The court also recognized, however, that

requiring the stringent criminal standard of “beyond a reasonable doubt” for civil

commitments could undermine the state’s legitimate interest in “protect[ing] the

community from the dangerous tendencies of some who are mentally ill.”99

So, “[h]aving concluded that the preponderance standard f[ell] short of

meeting the demands of due process and that the reasonable-doubt standard [wa]s

not required,” the court looked for “a middle level of burden of proof[,]”100

ultimately finding that, though the exact formulation was a matter of state law, a

“burden equal to or greater than the ‘clear and convincing’ standard . . . [wa]s

required to meet due process guarantees.”101 In like manner, the setting of cash bail,

which risks defendants’ pretrial liberty, should be supported by clear and convincing

evidence.102 In adopting this standard, we recognize the practical difficulty the State

96
Id. at 419–20.
97
Id. at 425.
98
Id. at 427.
99
Id. at 426, 430.
100
Id. at 431.
101
Id. at 433.
102
This standard of proof should not be confused with the rules governing the admissibility of
evidence at bail hearings. Just as the Federal Rules of Evidence do not apply at detention hearings,
30
and the Justice of the Peace Court will encounter when bail is set immediately

following arrest at a defendant’s initial presentment before a committing magistrate.

In light of the exigencies surrounding that appearance, it would be unreasonable, in

our view, to require the State to present clear and convincing evidence at that stage.

We therefore hold that this evidentiary standard will be triggered at the review

required under 11 Del. C. § 2110(a).103 Before that, whether the conditions of a

release bond are to be guaranteed by financial terms, including cash-only security,

“shall be in the discretion of the court subject to . . . chapter [21 of Title 11 of the

Delaware Code]”104 and the Special Rules of Criminal Procedure for Pretrial

Release.

In this case, the State met its burden. Burroughs is a person prohibited from

possessing a firearm who was caught in public selling drugs while in possession of

a loaded gun. And, in addition to disregarding a government order, his charge was

yet another in a series of escalating criminal acts. In short, we find no fault in the

see 18 U.S.C. § 3142(f)(2)(B), the Delaware Rules of Evidence do not apply to . . . [m]iscellaneous
proceedings such as . . . [a] [d]etention hearing in criminal hearings. D.R.E. 1101 (b)(4); see also
Wayne R. LaFave et al., Criminal Procedure (5th ed. 2009) § 12.1(d) (“Information received at a
bail hearing need not conform to the rules pertaining to the admissibility of evidence at trial.
However, this should not be taken to mean that information must be accepted by the court without
regard to its reliability. Thus, whether hearsay is admissible in a bail hearing must ultimately be
determined on a case by case basis by asking whether in the particular circumstances it is the kind
of evidence on which responsible persons are accustomed to rely in serious affairs.”)
103
See supra p. 19.
104
11 Del. C. § 2104(e)(1).
31
Superior Court’s finding that the evidence was clear and convincing and that

Burroughs represented an articulable threat to public safety.

We disagree, however, with the Superior Court’s finding that Burroughs’s bail

was justifiable on the ground that “the threat of forfeiting a high cash bail was the

only tool available to the Commissioner to achieve the State’s compelling [safety]

interest[.]”105 Section 2113 of the amended bail statute provides that,

“[n]otwithstanding any law to the contrary, no property, cash, surety or other assets

shall be forfeited except upon failure of the accused to appear as required by any

court.”106 Because an individual does not risk forfeiture of his cash bail upon the

commission of a crime while awaiting trial, the imposition of financial conditions of

release cannot be supported on that ground. Put differently, cash bail set to ensure

law-abiding conduct while on pretrial release is not narrowly tailored to the State’s

public-safety interest because that cash is not risked by subsequent criminal acts;

absent the risk of forfeiture, monetary conditions of release provide no deterrent to

a defendant’s unlawful conduct while awaiting trial.

D

Up to this point, we have hewed to Burroughs’s concession at oral argument

that the use of money bail to preventively detain individuals is permissible under the

105
See supra note 23.
106
11 Del. C. § 2113(b).
32
federal constitution so long as its imposition is supported by clear and convincing

evidence.107 But Burroughs also argues that Article I, § 12 of the Delaware

Constitution prohibits the use of unaffordable money bail to address public-safety

concerns. Even though the use of high cash bail is valid under the federal

constitution, it is, according to Burroughs, invalid under our state constitution, at

least when used to advance the government’s safety interest rather than to reduce a

defendant’s flight risk.108

As mentioned earlier, Article I, § 12 provides that, except for capital offenses,

“[a]ll prisoners shall be bailable by sufficient sureties . . . .”109 Burroughs interprets

this language to mean that “bail is an unconditional right in . . . [non-capital]

cases.”110 Defendants cannot, in other words, be intentionally detained pending trial

unless they have been charged with a capital offense. It follows, the argument goes,

that using high cash bail to increase the likelihood of pretrial detention for non-

capital crimes is an invalid workaround of this section.

We agree with Burroughs that Article 1, § 12 extends to defendants the right

to pretrial release via bail when not charged with a capital offense. The amended

107
Oral Argument at 4:57–6:29, Burroughs v. State IMO a Writ of Prohibition, Nos. 144, 2022
and 130, 2022 (Del. argued June 28, 2023)
https://livestream.com/accounts/5969852/events/10842489/videos/236685661/player.
108
Burroughs distinguishes bail that serves the government’s public-safety interest from bail that
deters a defendant from fleeing the state, noting that, under 11 Del. C. § 2113(b), defendants who
fail to appear at court risk forfeiting their bail money. See supra note 107 at 6:29–7:45.
109
See supra note 40.
110
Opening Br. at 33–34 (quoting Steigler, 250 A.2d at 383).
33
bail statute codifies this concept through §§ 2102(2) (defining “bail” as “the pretrial

release of a defendant from custody upon the terms and conditions specified by an

order of the court”) and 2104(a) (providing that “[a]ny person who is arrested and

charged with any crime other than a capital crime shall be released upon execution

of” a court-ordered conditions of release bond).111 We are not persuaded, however,

that this right is violated—as Burroughs claims that it is—when a defendant is

detained awaiting trial because he could not afford to post his bail.

To put a finer point on it, the Delaware Constitution, when stating that all

prisoners are bailable by sufficient sureties, guarantees every non-capital defendant

the right to receive some amount of bail considered sufficient by the court to permit

his pretrial release. It does not follow that that amount must be adjusted downward

until proportionate with the defendant’s ability to pay; if it did, all criminal

defendants not charged with a capital offense would be guaranteed their freedom

before trial regardless of the danger they pose to society or the severity of their

alleged offenses.

It bears emphasis here that Burroughs’s argument on this point is not that cash

cannot be used to achieve the purposes of bail but only that, should cash or other

financial conditions be attached to a defendant’s bail, the amount of cash must not

111
11 Del. C. §§ 2102(2), 2104(a).
34
be unaffordable.112 Burroughs does not, however, explain how he teases the notion

of affordability from Article I, § 12’s text. His argument, moreover, fails to account

for Article I, § 12’s designation of the type of “sureties” that will secure a

defendant’s pretrial release: “sufficient sureties.” “Sufficient,” as we see it in this

context, “was meant to be a qualification that provide[s] a measure of discretion for

judges to set the type and level of bail necessary to fulfill the purpose of bail . . . .”113

And, to reiterate, the purpose of bail in Delaware is to “adequately provide a

reasonable assurance of the appearance of the defendant at court proceedings, the

protection of the community, victims, witnesses and any other person, and to

maintain the integrity of the judicial process.”114 A construction that mandates the

release of a dangerous defendant runs contrary to that purpose.115

112
We note that several other states have considered whether cash bail is permissible under
“sufficient sureties” clauses similar to ours. There appears to be a split of authority on this
question. Compare Trujillo v. State, 483 S.W.3d 801, 806 (Ark. 2016) (“[B]ased on the plain
language of the constitution and our stated purpose for bail, we hold that the term ‘sufficient
sureties’ refers to a broad range of methods to accomplish ‘sufficient sureties,’ including cash.”);
Saunders v. Hornecker, 344 P.3d 771, 778–82 (Wyo. 2015) (surveying the split of authority
regarding the definition of “sufficient sureties” and concluding that cash-only bail is a permissible
method to accomplish the primary purpose of bail consistent with Wyoming’s “sufficient sureties”
clause) with State v. Barton, 331 P.3d 50, 59 (Wash. 2014) (holding that, under Washington
“sufficient sureties” clause, “‘surety’ contemplates a third-party arrangement as, distinguished
from the accused depositing cash or property directly with the court.”).
113
State v. Jackson, 384 S.W.3d 208, 213 (Mo. 2012).
114
11 Del. C. § 2101.
115
See In re Kowalczyk, 301 Cal. Rptr. 3d 648, 662 (Cal. Ct. App. 2022) (taking up a claim
regarding the constitutionality of unaffordable cash bail, the California Court of Appeals analyzed
the phrase “sufficient sureties” and found that “[a]lthough we have found no California case
expressly interpreting the phrase ‘sufficient sureties,’ the phrase must be construed in conjunction
with section 12’s requirement that trial courts fix the amount of bail upon consideration of ‘the
seriousness of the offense charged, the previous criminal record of the defendant, and the
probability of his or her appearing at the trial or hearing of the case.’ When viewed as a whole,
35
 By contrast, our reading comports with how our trial courts have applied the

amended bail statute. Courts impose conditions of release on defendants awaiting

trial. These conditions are typically non-financial unless the defendant has

committed a signal offense. To avoid the arbitrary imposition of cash bail for signal

offenses, courts look to the factors enumerated in 11 Del. C. §2105(b) and the

SENTAC guidelines to inform their consideration of what amount defendants must

pay to secure their release. In Burroughs’s case, the guidelines authorized a cash

bail of $110,501. He would have been released following payment of that amount.

Simply put, there is no textual warrant in Article I, § 12 for the notion that he must

be released anyway because of his inability to make such a payment. We therefore

agree with the Superior Court’s denial of Burroughs’s state constitutional claim.

V

To sum up, we hold that our State’s bail system as reflected in Chapter 21 of

Title 11 of the Delaware Code and related rules does not violate the Equal Protection

Clause of the Fourteenth Amendment. Nor does it violate that amendment’s Due

Process Clause so long as bail-setting courts, when imposing financial conditions

that will result in a defendant’s pretrial detention, observe the procedural protections

and with reference to section 28(f)(3)’s additional considerations of public and victim safety, the
most natural reading of section 12 is that a person has a right to be released upon the posting of a
sufficient security which a court, in its discretion, determines is adequate to accomplish the
purposes of bail, i.e., to protect public and victim safety and to ensure a defendant’s presence in
court.”).
36
set forth in the bail statute and apply a “clear and convincing evidence” standard as

described above. And finally, we conclude that the “sufficient sureties” clause found

in Article I, § 12 of the Delaware Constitution does not require that the financial

conditions attached to release bonds be affordable.

We recognize that, absent an amendment to Article I, § 12, the setting of cash

bail for persons accused of signal offenses will result in the pretrial detention of

many defendants, but only where clear and convincing evidence establishes that the

purposes of bail can be served in no other way. We also understand that some

defendants no less dangerous than those detained will be able to secure pretrial

release because of their superior bail resources. This flaw, as we have endeavored

to explain, is not constitutional in magnitude; whether it is tolerable is for the

democratic process to decide.

We affirm the Superior Court’s judgment.

37