§ 2116 — Preventive detention [Effective July 1, 2026]
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(a)Purpose. —
The purpose of this section is to provide the court with the authority to make transparent decisions to detain certain detention-eligible defendants pending a final determination as to the guilt of the defendant.
(b) (1)Eligibility. —
A detention-eligible defendant is a defendant charged with committing or attempting to commit any of the following:
a. Any Title 11 class A felony.
b. Abuse of a pregnant female in the first degree, in violation of § 606 of this title.
c. Strangulation, in violation of § 607 of this title.
d. Assault in the second degree, in violation of § 612(a)(1) or (a)(2) of this title.
e. Assault in the first degree, in violation of § 613 of this title.
f. Manslaughter, in violation of § 632 of this title.
g. Murder of a child by abuse or neglect in the second degree, in violation of § 633 of this title.
h. Rape in the fourth degree, in violation of § 770(a)(1) or (a)(3) of this title.
i. Rape in the third degree, in violation of § 771 of this title.
j. Rape in the second degree, in violation of § 772 of this title.
k. Continuous sexual abuse of a child, in violation of § 776 of this title.
l.Sex offender unlawful sexual conduct against a child, in violation of § 777A of this title.
m. Sexual abuse of a child by a person in a position of trust, authority, or supervision in the first degree, in violation of § 778 of this title.
n. Kidnapping in the first degree, in violation of § 783A of this title.
o. Trafficking an individual; forced labor; sexual servitude, in violation of § 787(b)(1) through (3) of this title.
p. Arson in the first degree, in violation of § 803 of this title.
q. Burglary in the first degree, in violation of § 826 of this title.
r. Robbery in the first degree, in violation of § 832 of this title.
s. Child abuse in the second degree, in violation of § 1103B of this title.
t. Child torture, in violation of § 1103D of this title.
u. Sexual exploitation of a child, in violation of § 1108 of this title.
v. Unlawful dealing in child pornography, in violation of § 1109 of this title.
w. Sexual solicitation of a child, in violation of § 1112A(h) of this title.
x. Promoting sexual solicitation of a child, in violation of § 1112B(g) of this title.
y. Escape after conviction in violation of § 1253 of this title, when a class C or class B felony.
z. Stalking, in violation of § 1312 of this title.
aa. Possession of a deadly weapon during commission of a felony, in violation of § 1447 of this title.
bb. Possession of a firearm during commission of a felony, in violation of § 1447A of this title.
cc. Possession of a firearm by persons prohibited, in violation of § 1448(a)(1), (a)(4), (a)(6), (a)(7), or (a)(11) of this title.
dd. Racketeering, in violation of § 1503 of this title.
ee. Aggravated act of intimidation, in violation of § 3533 of this title.
ff. Any violent felony as defined by § 4201(c) of this title, allegedly committed while defendant is pending adjudication on a previously charged violent felony.
gg. Any violent felony, as defined by § 4201(c) of this title, allegedly committed against a petitioner with an active protection from abuse order against the defendant.
hh. Any violent felony, as defined by § 4201(c) of this title, allegedly committed against a victim while the defendant is pending adjudication on a previously charged “domestic violence” offense as defined by § 1041 of Title 10, allegedly committed against the same victim.
ii. Any felony offense of “domestic violence,” as defined by § 1041 of Title 10, allegedly committed while defendant is pending adjudication on a previously charged violent felony, as defined by § 4201(c) of this title.
jj. Felony noncompliance with bond, in violation of § 2109(c)(1) or § 2113(c)(1) of this title and involving a violent felony offense as defined by § 4201(c) of this title.
kk. Any felony offense of “domestic violence,” as defined by § 1041 of Title 10, causing “physical injury,” as defined by § 222 of this title, or “serious physical injury,” as defined by § 222 of this title.
ll.Drug dealing (Tier 3), in violation of § 4752(a)(1) of Title 16.
(2) An offense may only be added to the list in paragraph (b)(1) of this section by an act that complies with § 12 of Article I of the Delaware Constitution. An amendment to an offense on the list in paragraph (b)(1) of this section is amended for the purposes of paragraph (b)(1) of this section only if it complies with § 12 of Article I of the Delaware Constitution.
(c)Initial appearance right to counsel. —
A defendant who is eligible for preventive detention under this section must be afforded representation by the Office of Defense Services or retained counsel at the initial appearance described by § 1909 of this title. A defendant who is unable to afford counsel must have counsel appointed without undue delay and, in any event, within 24 hours of arrest.
(d)Temporary preventive detention hearing. —
(1) If a detention-eligible defendant appears before a Justice of the Peace magistrate or a judicial officer of the Superior Court for initial appearance, the magistrate or judicial officer of the Superior Court may issue a temporary order to detain the defendant for a period of time not to exceed 10 days if the court finds all of the following:
a. Probable cause that the defendant committed 1 of the offenses listed in subsection (b) of this section.
b. Clear and convincing evidence that no condition or combination of conditions of release will do all of the following:
1. Reasonably assure the appearance of the defendant at court proceedings.
2. Reasonably assure the protection of the community, victims, witnesses, or any other person.
3. Reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice.
(2) Enumerated factors to consider during a temporary preventive detention hearing. —
During a temporary preventive detention hearing to determine whether no condition or combination of conditions will reasonably assure the defendant’s appearance at court proceedings, reasonably assure the protection of the community, victims, witnesses, or any other person, and reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice, the court may consider all of the following:
a. The nature and circumstances of the offense charged.
b. The history and characteristics of the defendant, including any of the following:
1. Whether, at the time of the current arrest, the defendant was on probation, parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law or the law of this State or any other state.
2. The defendant’s history of community supervision including amenability to pretrial conditions of release, failure to appear, failure to register as sex offender violations, custodial sentences imposed, and prior convictions for felonies, misdemeanors, and violent offenses.
3. The defendant’s family ties, including responsibility as a primary caregiver to children or infirm relatives.
4. The defendant’s employment or enrollment in educational studies.
5. The defendant’s character, physical and mental condition, including engagement in medical, mental health, or substance abuse treatment, and the effect detention would have on any current treatment.
6. The defendant’s length of residence in the community.
c. The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release.
d. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant’s release.
e. The recommendation of the Attorney General or any pretrial services agency.
f. The defendant’s eligibility to be sentenced under § 4214 of this title.
(3) a. A temporary preventive detention order issued by the Justice of the Peace Court under this subsection may be extended by the Court of Common Pleas or the Superior Court on motion of the State, the defendant, or on the court’s own motion when there is a showing of good cause for the extension and consent of the nonmoving parties. In the absence of consent of the nonmoving parties, a temporary preventive detention order may be extended only on a showing that exceptional circumstances exist and that delay is indispensable to the interests of justice.
b. A temporary preventive detention order issued by a judicial officer of the Superior Court under this subsection may be extended by the Superior Court on motion of the State, the defendant, or on the court’s own motion when there is a showing of good cause for the extension and consent of the nonmoving parties. In the absence of consent of the nonmoving parties, a temporary preventive detention order may be extended only on a showing that exceptional circumstances exist and that delay is indispensable to the interests of justice.
(4) If a detention-eligible defendant was previously released pending adjudication and is alleged to have wilfully violated any material condition of release or is subsequently charged by arrest, warrant, indictment, or information with the commission of an offense listed in subsection (b) of this section or any violent felony, any form of release relating to the original detention-eligible offense must be temporarily revoked by the court, including the Justice of the Peace Court, Court of Common Pleas, or Superior Court, before which the defendant is then appearing, a temporary preventive detention order must be entered, and the defendant must be held for the original detention-eligible offense until such time as the Superior Court holds a preventive detention hearing under subsection (e) of this section.
(5) a. If the court makes the findings required in paragraph (d)(1) of this section, there is a presumption in favor of the court’s entry of a temporary preventive detention order.
b. If the court does not make the findings required in paragraph (d)(1) of this section, the offense with which the defendant is charged is deemed bailable and the court shall determine, in a manner consistent with all applicable provisions of this chapter, the terms of a conditions of release bond to be imposed.
(e)Preventive detention hearing. —
(1) a. A temporary preventive detention order issued at an initial appearance under subsection (d) of this section expires after 10 days if not extended by an order granted under paragraph (d)(3) of this section or by an order of the Court of Common Pleas or Superior Court granting preventive detention following a preventive detention hearing with adequate due process protections under subsection (f) of this section.
b. Whether a temporary preventive detention order was issued at an initial appearance or not, on written motion of the State, the Court of Common Pleas or Superior Court may grant an order of preventive detention following a preventive detention hearing with adequate due process protections under subsection (f) of this section.
(2) At a hearing to determine whether the defendant should be subject to preventive detention, the Court of Common Pleas or Superior Court may enter an order of preventive detention if the court finds all of the following:
a. Proof positive or presumption great that the defendant committed 1 of the offenses listed in paragraph (b)(1) of this section.
b. Clear and convincing evidence that no condition or combination of conditions of release will do all of the following:
1. Reasonably assure the appearance of the defendant at court proceedings.
2. Reasonably assure the protection of the community, victims, witnesses, or any other person.
3. Reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice.
(f)Preventive detention hearing procedures. —
At a hearing under subsection (e) of this section, all of the following apply:
(1) The defendant has the right to be present and represented by counsel, and, if indigent, to have counsel appointed.
(2) The defendant must be afforded the right to testify, present evidence and call witnesses on the defendant’s behalf, and confront and cross-examine witnesses who appear at the hearing. The defendant’s testimony at a preventive detention hearing, if any, is not admissible at a subsequent hearing or trial other than for impeachment or prosecution for perjury.
(3) The Attorney General bears the burden of establishing commission of an offense with proof positive or presumption great.
(4) If the Court finds by proof positive or presumption great that an offense was committed and the defendant committed the offense, the Attorney General bears the burden of establishing by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the defendant’s appearance at court proceedings, reasonably assure the protection of the community, victims, witnesses, or any other person, and reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice.
(5) The rules of evidence do not apply in the presentation and consideration of information.
(6) a. Subject to paragraph (f)(6)b. of this section, the Attorney General must disclose to the defendant at or before the preventive detention hearing all evidence within the Attorney General’s possession at the time of the preventive detention hearing that is favorable to the defendant in the preventive detention determination in that it negates the defendant’s eligibility for an order of preventive detention.
b. The Attorney General is deemed to not be in possession of any evidence in the possession or control of other Delaware state agents that has not yet been provided to the Attorney General.
(7) The hearing must be held within 10 days of arrest if not extended by the Court of Common Pleas or the Superior Court. An extension may be granted on motion of the State, the defendant, or on the court’s own motion when there is a showing of good cause for the extension and consent of the nonmoving parties. In the absence of consent of the nonmoving parties, the 10-day period may be extended only on a showing that exceptional circumstances exist and that delay is indispensable to the interests of justice.
(8) The hearing must be recorded.
(9) a. If the Court of Common Pleas or Superior Court makes the findings required in paragraph (e)(2) of this section, there is a presumption in favor of the Court’s entry of an order of preventive detention.
b. If the Court of Common Pleas or Superior Court does not make the findings required in paragraph (e)(2) of this section, the offense with which the defendant is charged is deemed bailable and the court shall determine, in a manner consistent with all applicable provisions of this chapter, the terms of a conditions of release bond to be imposed.
(g)Enumerated factors to consider during a preventive detention hearing. —
(1) During a preventive detention hearing to determine whether no condition or combination of conditions will reasonably assure the defendant’s appearance at court proceedings, reasonably assure the protection of the community, victims, witnesses, or any other person, and reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice, the Court of Common Pleas or Superior Court may consider all of the following:
a. The nature and circumstances of the offense charged.
b. The weight of the evidence against the defendant and likelihood of conviction. In assessing the likelihood of conviction, the court may consider the admissibility of any evidence sought to be excluded.
c. The history and characteristics of the defendant, including all of the following:
1. Whether, at the time of the current arrest, the defendant was on probation, parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law or the law of this State or any other state.
2. The defendant’s history of community supervision including amenability to pretrial conditions of release, failure to appear, failure to register as sex offender violations, custodial sentences imposed, and prior convictions for felonies, misdemeanors, and violent offenses.
3. The defendant’s family ties, including responsibility as a primary caregiver to children or infirm relatives.
4. The defendant’s employment or enrollment in educational studies.
5. The defendant’s character, physical and mental condition, including engagement in medical, mental health, or substance abuse treatment, and the effect detention would have on any current treatment.
6. The defendant’s length of residence in the community.
d. The nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release.
e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant’s release.
f. The recommendation of the pretrial services agency.
g. The defendant’s eligibility to be sentenced under § 4214 of this title.
(2) Although the charged offense itself may be a predicate to preventive detention proceedings, the court must exercise care not to give preclusive weight to the nature of the present charged offense when evaluating all relevant factors for the preventive detention decision.
(h)Contents of preventive detention order. —
In a preventive detention order issued following a hearing under subsection (e) of this section, the court shall make all of the following findings:
(1) Findings of fact that establish proof positive or presumption great that the defendant committed 1 of the offenses under paragraph (b)(1) of this section.
(2) Findings of fact that establish clear and convincing evidence that no condition or combination of conditions of release will do all of the following:
a. Reasonably assure the appearance of the defendant at court proceedings.
b. Reasonably assure the protection of the community, victims, witnesses, or any other person.
c. Reasonably maintain the integrity of the judicial process, such that the defendant will not obstruct or attempt to obstruct justice.
(i)Detention order review. —
On motion filed by the State or the defendant, an order entered by the Court of Common Pleas or a commissioner of Superior Court granting or denying the detention of a detention-eligible defendant is immediately reviewable by a judge of the Superior Court. The party seeking relief from the order must file a motion in accordance with the rules of the Superior Court.
(j)Requirement for accelerated trial for detained defendants. —
All of the following speedy trial protections apply to defendants detained under subsection (d) or (e) of this section:
(1) A defendant may not remain detained under an order issued under subsection (d) or (e) of this section for more than 60 days before the return of an indictment or docketing of a waiver of indictment. If the defendant is not indicted or has not waived indictment within 60 days of entry of a temporary preventive detention order issued under subsection (d) of this section or a preventive detention order issued under subsection (e) of this section, whichever is later, the offense with which the defendant is charged is deemed bailable and the court shall determine, in a manner consistent with all applicable provisions of this chapter, the terms of a conditions of release bond to be imposed.
(2) a. A defendant may not remain detained under an order issued under subsection (e) of this section for more than the following periods on a charged offense after the return or unsealing of the indictment, whichever is later:
1. Three hundred sixty-five days on a charge of murder in the first degree, in violation of § 636 of this title.
2. Two hundred seventy days for a class A felony other than murder in the first degree.
3. One hundred eighty days for all other felony offenses under paragraph (b)(1) of this title other than murder in the first degree or another class A felony.
b. If a defendant’s trial does not commence within the applicable period under paragraph (j)(2)a. of this section, the offense with which the defendant is charged is deemed bailable and the court shall determine, in a manner consistent with all applicable provisions of this chapter, the terms of a conditions of release bond to be imposed.
(3) Notwithstanding any other provision of this section, a defendant must be released on a conditions of release bond if, 2 years after the court’s issuance of the preventive detention order issued under subsection (e) of this section, the Attorney General is not ready to proceed to voir dire, opening argument, or a hearing of any motions that had been reserved for the time of trial. The terms of any conditions of release bond to be imposed must be determined by the court in a manner consistent with all applicable provisions of this chapter.
(4) If the defendant is charged or indicted on more than 1 matter resulting in the defendant’s preventive detention under an order entered under subsection (e) of this section, the time calculations for each matter run independently but not consecutively.
(5) Notwithstanding any other provision of this section, a preventive detention order issued under subsection (e) of this section may be extended by the Superior Court on motion of the State, the defendant, or on the court’s own motion when there is a showing of good cause for the extension and consent of the nonmoving parties. In the absence of consent of the nonmoving parties, a preventive detention order issued under subsection (e) of this section may be extended by the Superior Court only on a showing that exceptional circumstances exist and that delay is indispensable to the interests of justice.
(k) In addition to the information required in the annual report established in § 2114(i) of this title, the Criminal Justice Council shall include the following information analyzed by the Statistical Analysis Center based on data recorded, compiled, and provided electronically to the Statistical Analysis Center by the courts:
(1) The number of detention-eligible defendants identified by the courts.
(2) Rates of initial detention for detention-eligible defendants identified by the courts.
(3) Demographic information for defendants identified by the courts as detention-eligible.
(4) Rates of rearrest and failure to appear during the pretrial period among detention-eligible defendants identified by the courts and released with detention-eligible charges pending.
Delaware § 2116 (Preventive detention [Effective July 1, 2026]) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.