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,1constituting 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.
2

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, 
3

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.
4

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).
5

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,”5acted sua sponte to “review and reset bail,”6reinstating 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.
6

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,”8although 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. 
7

Burroughs was not deterred; the following day he filed a “Motion for NonFinancial 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. 
8

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.
9

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.
10

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.
11

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).
12

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.
13

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.
14

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.
15

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.”).
16

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.”).
17

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.
18

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).
19

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).
20

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 
21

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).
22

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). 
23

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.
24

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 
25

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.” 
26

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 strictscrutiny 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.
27

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).
28

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 nonfinancial 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).
29

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).
30

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, 
31

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).
32

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’sfinding 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).
33

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 noncapital 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).
34

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).
35

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, 
36

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.”).
37

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.