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SPONSOR: Sen. Pinkney & Sen. Townsend & Rep. Minor-Brown &
Rep. Bush & Rep. Lambert & Rep. Morrison &
Rep. Romer
Sens. Huxtable, Lockman, Seigfried, Sokola, Sturgeon;
Reps. Bolden, Gorman, Neal, Phillips, Snyder-Hall,
Wilson-Anton
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 7
AN ACT TO AMEND TITLE 11 AND TITLE 13 OF THE DELAWARE CODE RELATING TO THE CRIMINAL
JUSTICE SYSTEM, INCLUDING PROBATION.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
1 Section 1. Amend § 4302, Title 11 of the Delaware Code by making deletions as shown by strike through and
2 insertions as shown by underline as follows:
3 § 4302. Definitions.
4 As used in this chapter:
5 (6) “Criminogenic needs” means the dynamic factors or conditions that, when addressed in an individualized
6 manner with evidence-based interventions, can significantly reduce the likelihood of recidivism.
7 (8) “Goals of supervision” means deterrence of criminal conduct, protection of the community, protection of
8 victims, and rehabilitation of the individual on probation.
9 Section 2. Amend § 4321, Title 11 of the Delaware Code by making deletions as shown by strike through and
10 insertions as shown by underline as follows:
11 § 4321. Probation and parole officers.
12 (b)(1) The Department shall furnish to each person released under the supervision of the Department a written
13 statement of the conditions of the person’s probation or parole and shall instruct the person regarding these conditions.
14 (4) a. A special condition of supervision may be set by orders of the court, Board of Parole or the probation
15 and parole officer acting under the authority of the court or Board of Parole.
16 b. Special conditions of supervision imposed by the probation and parole officer shall be in accordance
17 with Department procedures and may be enforced in the interim period of final review by the court or Board of
18 Parole.
19 c. Unless the offense for which the person is sentenced mandates specific conditions, the probation and
20 parole officer shall use the least restrictive special conditions necessary to achieve the goals of supervision.
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21 Section 3. Amend § 4322, Title 11 of the Delaware Code by making deletions as shown by strike through and
22 insertions as shown by underline as follows:
23 § 4322. Protection of records.
24 (a)(1) The presentence report (other than a presentence report prepared for the Superior Court or the Court of
25 Common Pleas), Except as provided under paragraph (a)(2) of this section, the presentence report, the preparole report, the
26 supervision history history, and all other case records obtained in the discharge of official duty by any member or employee
27 of the Department shall be privileged and shall not only be disclosed directly or indirectly to anyone other than the courts as
28 defined in § 4302 of this title, to the courts, the Board of Parole, the Board of Pardons, the Attorney General and the
29 Deputies Attorney General General, or others entitled by this chapter to receive such information; except that the this
30 information. The court or Board of Pardons may, in its discretion, may permit the inspection of the report or other
31 information or parts thereof of the report or other information by the offender individual who is the subject of the report or
32 other information or the offender’s individual’s attorney or other persons who in the judgment of the court or Board of
33 Pardons have a proper interest therein, in the report or other information, whenever the best interest of the this State or
34 welfare of a particular defendant the individual who is the subject of the report or other information or other person makes
35 such the action desirable or helpful. No person committed to the Department shall have access to any of said records.
36 (2) The A presentence reports report prepared for the Superior Court and or the Court of Common Pleas shall
37 be is under the control of those Courts respectively. the court for which the report is prepared.
38 (b)(1) The Commissioner or the Commissioner’s designees may receive and use, for the purpose of aiding in the
39 treatment of rehabilitation of offenders, an individual, the preparole report, the supervision history history, and other
40 Department of Correction case records, provided that such the information or reports remain privileged for any other
41 purpose.
42 (2) This subsection shall does not apply to the presentence reports of the Superior Court and the Court of
43 Common Pleas which reports shall remain under the control of such Courts.
44 (c) No inmate An individual incarcerated in a correctional facility may not be provided a copy of the Department
45 of Correction Policy and Procedures Manuals, the Bureau of Prisons Policy and Procedures Manuals, the Department of
46 Correction Facilities Operational Procedures, Administrative Regulations, or Post Orders that could jeopardize the safety or
47 security of a correctional facility, corrections staff, inmates, individuals incarcerated in a correctional facility, or the public.
48 (d) A Department of Correction policy or procedure which, in the judgement of the Commissioner, contains
49 information that could jeopardize the safety or security of a correctional facility, corrections staff, inmates individuals
50 incarcerated in a correctional facility, or the public shall be confidential and subject to disclosure only upon written
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51 authority of the Commissioner. For purposes of this subsection, “Department of Correction policy or procedure” includes
52 any policy, procedure, post order, facility operational procedure, or administrative regulation adopted by a bureau, facility,
53 or division of the Department.
54 (j) An individual denied access to a document under subsection (c) or (d) of this section may seek relief under §
55 10005 of Title 29.
56 Section 4. Amend § 4332, Title 11 of the Delaware Code by making deletions as shown by strike through and
57 insertions as shown by underline as follows:
58 § 4332. Conditions of probation or suspension of sentence; house arrest for offenders.
59 (a)(1) The Department may adopt standards concerning the conditions of probation or suspension of sentence
60 which the court may use in a given case.
61 (2) The standard conditions shall apply in the absence of any other specific or inconsistent conditions imposed
62 by the court under this subsection.
63 (3) The presentence report may recommend conditions to be imposed by the court.
64 (4) Nothing in this chapter shall limit limits the authority of the court to impose or modify any general or
65 specific standard or special conditions of probation or suspension of sentence.
66 (5) The Department may recommend and, by order, the court may impose and may at any time order
67 modification of any conditions of probation or suspension of sentence. Before any conditions are modified, a report by
68 the Department shall must be presented to and considered by the court.
69 (6) The court shall cause a copy of any order to be delivered to the Department and to the probationer.
70 individual on probation.
71 (7) Unless the offense for which an individual on probation is sentenced mandates special conditions, a court,
72 Board of Parole, or probation and parole officer shall presumptively impose the least number of special conditions, and
73 least restrictive special conditions of supervision, necessary to achieve the goals of supervision.
74 a. A special condition imposed may not be more restrictive than reasonably necessary to achieve the goals
75 of supervision or address criminogenic needs.
76 b. Before imposing a special condition, the court, Board of Parole, or probation and parole officer must
77 consider whether the special condition is more restrictive than reasonably necessary to achieve the goals of
78 supervision.
79 c. A special condition must be reasonably related to the criminogenic needs of the individual on probation
80 or goals of supervision.
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81 d. For each special condition imposed, the court, Board of Parole, or probation and parole officer must
82 state the reasonable relation to the criminogenic needs of the individual on probation or the goals of supervision.
83 e. Before imposing a special condition, the court, Board of Parole, or probation and parole officer must
84 consider whether fewer special conditions or less restrictive special conditions do not achieve the goals of
85 supervision.
86 (8) Unless the offense for which the person is sentenced mandates specific conditions, the court, Board of
87 Parole, or probation and parole officer may not impose a special condition of supervision with which the individual on
88 probation cannot reasonably comply. Unless the offense for which the person is sentenced mandates specific
89 conditions, before imposing a special condition, the court, Board of Parole, or probation and parole officer must
90 consider if the individual on probation has the necessary resources and ability to comply with the special condition.
91 (9) The Board of Parole or probation and parole officer shall ensure that reporting requirements are as
92 minimally-intrusive as possible in order to address criminogenic needs or achieve the goals of supervision, and may
93 provide an individual on probation with alternative reporting options, including the option of reporting remotely, when
94 appropriate.
95 a. A probation and parole officer must set the required reporting times and locations for an individual on
96 probation at times and locations reasonably designed to accommodate the verifiable work schedule of an
97 individual on probation, as well as considerations related to education, childcare, healthcare, and transportation
98 availability.
99 b. A probation and parole officer may utilize audio and visual communications, or audio-only
100 communication, in lieu of requiring a face-to-face in-person reporting for an individual on probation.
101 c. A probation and parole officer may excuse an in-person probation visit as a graduated incentive for
102 compliance with treatment program requirements.
103 (10) If a program is a requirement of supervision, the Board of Parole or probation and parole officer must
104 facilitate a referral into the program.
105 a. If a required program is not available and a violation of probation is filed, the court must consider the
106 totality of the circumstances when deciding whether to establish the alleged violation.
107 b. If the sentencing court determines on the record that the Board of Parole or probation and parole officer
108 did not reasonably facilitate an individual on probation’s referral into the program, a longer period of probation or
109 suspension of sentence is prohibited.
110 c. The Department is not required to contract for or create a program that is a requirement of supervision.
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111 (11) Before pursuing sanctions up to and including revocation for an alleged violation of probation, the
112 probation and parole officer shall make reasonable efforts to inquire into why an individual on probation failed to abide
113 by a condition, including by affirmatively attempting to re-engage an individual on probation who fails to report before
114 deeming the individual on probation to have violated the individual on probation’s conditions of supervision. The
115 probation and parole officer shall make reasonable efforts to connect the individual on probation with needed services
116 and resources before pursuing sanctions against the individual on probation.
117 (b) The Department may adopt standards governing any program of house arrest for offenders. arrest. The
118 presentence report may recommend conditions to be imposed by the court. In addition to any conditions imposed by the
119 Department or by the court, each program involving house arrest for offenders, arrest, regardless of the official or unofficial
120 name of the program, shall include a reasonable monthly payment by each offender participating in the program, clear must
121 include all of the following:
122 (1) Clear and consistent incentives for compliance and sanctions when a participant in the program violates
123 any of the conditions, for non-compliance with conditions of supervision.
124 (2) and the ownership or leasing of all equipment by the Department of Correction. That the Department owns
125 or leases all equipment.
126 (c) The Department is authorized to may use offender electronic monitoring systems and any new or emerging
127 offender monitoring technology that will assist in the supervision of offenders an individual placed on house arrest. arrest,
128 as reasonably necessary. A probation and parole officer may utilize audio and visual communications, or audio-only
129 communication, in lieu of requiring a face-to-face in-person reporting for an individual placed on house arrest.
130 (d) The Department is authorized to may supervise offenders an individual placed on house arrest without the use
131 of any specific electronic equipment, so long as if sufficient and reasonable methods for ensuring compliance with the
132 terms of house arrest are employed.
133 Section 5. Amend § 4333, Title 11 of the Delaware Code by making deletions as shown by strike through and
134 insertions as shown by underline as follows:
135 § 4333. Period of probation or suspension of sentence; termination.
136 (b) The length of any period of probation or suspension of sentence shall be limited to: is limited to the following:
137 (1) Two years, for any violent felony in this title as designated in § 4201(c) of this title; title.
138 (2) Eighteen months, for any offense set forth in Title 16; or 16.
139 (3) One year, for any offense not otherwise specified in paragraph (b)(1) or (2) of this section.
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140 (c) Any offender An individual who is serving more than 1 sentence imposed following convictions in more than 1
141 case shall must not serve a consecutive period of probation or suspension of sentence that is in excess of the limitations
142 imposed by subsection (b) of this section. Any sentence of probation or suspension of sentence ( sentence, or any portion
143 thereof) thereof, which, if served consecutively to another such sentence, would result in an aggregate sentence of probation
144 or suspension of sentence in excess of the limitations imposed by subsection (b) of this section shall be section, is deemed
145 to be concurrent to such the other sentence. The provisions of this This subsection shall does not apply to a sentence
146 imposed for a conviction involving an offense committed while the offender individual was serving a period of probation or
147 suspension of sentence.
148 (d) The limitations set forth in subsections (b) and (c) of this section shall not apply: do not apply to any of the
149 following:
150 (1) To any A sentence imposed for a conviction of any sex offense sexual offense, as defined in § 761 of this
151 title title, if the sentencing court determines on the record that a longer period of probation or suspension of sentence
152 will substantially reduce the likelihood that the offender individual will commit a sex sexual offense or other violent
153 offense in the future; future.
154 (2) To any A sentence imposed for any violent felony in this title as designated by § 4201(c) of this title title,
155 if the sentencing court determines on the record that public safety will be enhanced by a longer period of probation or
156 suspension of sentence; or sentence.
157 (3) To any A sentence imposed for any offense set forth in the Delaware Code Code, if the sentencing court
158 determines on the record that a longer period of probation or suspension of sentence is necessary to ensure the
159 collection of any restitution ordered, except that any ordered.
160 a. Any period of probation ordered pursuant to under this paragraph (d)(3) that is in excess of the
161 limitations set forth in under subsections (b) and (c) of this section shall must be served at Accountability Level I
162 — Restitution Only pursuant to under the terms of § 4204(c)(10) of this title.
163 b. An individual sentenced to Accountability Level I – Restitution Only may not have the individual’s
164 probation level increased based on the individual’s reasonable inability to pay the restitution ordered.
165 (e) The limitations set forth in subsection subsections (b) and (c) of this section may be exceeded by up to 90 days
166 by the sentencing court if it the sentencing court determines that the defendant the individual has not yet completed a
167 substance abuse treatment program ordered by the court, provided, that each extension of sentence ordered pursuant to
168 under this subsection shall must be preceded by a hearing, and by a finding on the record, that such record of all of the
169 following:
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170 (1) The extension of sentence is necessary to facilitate the completion of the substance abuse treatment
171 program. program.
172 (2) The probation and parole officer made reasonable efforts to refer the individual to the appropriate
173 program.
174 (3) Less-restrictive measures do not facilitate completion of the program.
175 Section 6. Amend § 4383, Title 11 of the Delaware Code by making deletions as shown by strike through and
176 insertions as shown by underline as follows:
177 § 4383. Earned compliance credit for probation.
178 (a) Any periods of probation sentenced to or released to probation on or after August 8, 2012, may be reduced by
179 earned compliance credit under the provisions of this chapter and rules and regulations adopted by the Department of
180 Correction. Department.
181 (b)(1) Persons under supervision may earn up to 30 days of credit for 30 days of compliance with conditions of
182 supervision, not to exceed 1/2 of their probationary period. supervision.
183 (2) Earned compliance credit will be is forfeited upon on conviction of a new crime and may be forfeited upon
184 on revocation of probation.
185 (c) For any offender individual released on or after August 8, 2012, a period of conditional release shall must be
186 served concurrently with the probationary period.
187 (d) Earned compliance credit shall not be available to reduce any period of probation does not apply to any period
188 of probation imposed for any of the following:
189 (1) Imposed for any A sexual offense as defined in § 761 of this title; or title.
190 (2) Imposed for any A violent felony in this title as designated by § 4201(c) of this title; or title.
191 (3) Imposed for any An offense set forth in the Delaware Code Code, if the period of probation is imposed to
192 ensure the collection of any restitution ordered and the individual is sentenced to Accountability Level I—Restitution
193 Only; or Only.
194 (4) Imposed for such Such other categories of offenses as set forth in the rules and regulations adopted by the
195 Department of Correction. Department.
196 (e) If an individual on probation is eligible to receive earned compliance credits, the Department shall notify the
197 individual in writing that the individual is eligible to receive earned compliance credits. The Department shall notify an
198 individual on probation of the individual’s earned compliance credit eligibility date when the Department calculates the
199 date.
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200 Section 7. Amend § 101, Title 13 of the Delaware Code by making deletions as shown by strike through and
201 insertions as shown by underline as follows:
202 § 101. Void and voidable marriages.
203 (b) A marriage is prohibited, and is void from the time its nullity is declared by a court of competent jurisdiction at
204 the instance of the innocent party, if either party thereto is:
205 (7) On probation or parole from any court or institution, unless such person first files with the clerk of the
206 peace to whom such person makes application for a marriage license a written consent to such person’s proposed
207 marriage from the chief officer of such court or institution or from someone who is appointed by such officer to give
208 such consent, and unless in other respects the applicant may lawfully marry. [Repealed.]
209 Section 8. Amend § 111, Title 13 of the Delaware Code by making deletions as shown by strike through and
210 insertions as shown by underline as follows:
211 § 111. Establishing validity of papers submitted by applicants; filing and inspection.
212 Clerks of the peace shall examine and satisfy themselves of the validity of papers submitted to them by divorced
213 persons, persons and past or present patients of Delaware Psychiatric Center or other designated psychiatric treatment
214 facilities as defined in § 5001 of Title 16, and persons on probation or parole and shall file such papers in the office of the
215 recorder of the appropriate county. Such papers shall constitute a part of the application for marriage license, but shall be
216 open to inspection of the public only upon order of the Resident Judge of the proper county or such person as the Judge
217 may appoint to give such orders.
218 Section 9. Amend § 113, Title 13 of the Delaware Code by making deletions as shown by strike through and
219 insertions as shown by underline as follows:
220 § 113. Supplies of marriage licenses, books and other forms; form.
221 (d) In the case of an adult person who is on probation or parole from any court or institution, the chief officer of
222 such court or institution, or such person as such officer may appoint to give consent to marry, shall supply such consent in
223 whatever form such officer deems advisable to such applicants for marriage license as such officer believes may properly
224 marry. [Repealed.]
225 Section 10. Amend § 122, Title 13 of the Delaware Code by making deletions as shown by strike through and
226 insertions as shown by underline as follows:
227 § 122. Marriage license application.
228 (a) The marriage license application shall be in the form prescribed and provided by the Department of Health and
229 Social Services and shall be permanently preserved by the issuing officer in the manner as prescribed by the Department of
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230 Health and Social Services. The marriage license application shall include the following information and such other
231 information as prescribed by the Department of Health and Social Services: date of application, full name, sex, Social
232 Security number, birth date and occupation of applicants, names and addresses of parents of applicants, date and place of
233 previous marriages, civil unions, domestic partnerships or other substantially similar legal unions, and termination of
234 previous marriages, civil unions, domestic partnerships or other substantially similar legal unions, place and court where
235 applicants are on probation or parole, if such they be, and time of application.
236 Section 11. As of the effective date of this Act, any outstanding balances owed by an individual for a service fee
237 imposed under § 4332(b) of Title 11 of the Delaware Code (repealed by Section 4 of this Act), including any fee, costs,
238 interest, or other charge assessed on a service fee imposed under § 4332(b) of Title 11 of the Delaware Code are
239 discharged.
240 Section 12. This Act takes effect 180 days after the Act’s enactment into law.
SYNOPSIS
This Act is based on Senate Substitute No. 3 for Senate Bill No. 4 of the 152nd General Assembly, which
modernizes Delaware’s probation system, including by directing the courts, the Board of Parole, and the Bureau of
Community Corrections to use the least restrictive probation and parole conditions and the most minimally intrusive
reporting requirements necessary to achieve the goals of community supervision.
Author: Senator Pinkney
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