Last week, the Delaware Supreme Court issued an order declaring that the state’s death penalty law was unconstitutional. This makes Delaware the 20th state (plus the District of Columbia) to ban the death penalty, and the eighth state to end the death penalty in the last nine years. This decision also raises constitutional questions about the death penalty in California and other states.
In a 148-page opinion, the court said that because the death penalty law gave judges, rather than juries, the final authority to render a death sentence, it violated the Sixth Amendment. The U.S. Supreme Court made clear in an 8-1 ruling in January (Hurst v. Florida), that a “jury, not a judge . . . find each fact necessary to impose a sentence of death.”
Delaware is one of only two states, with Alabama (Florida changed its law after Hurst), that allows a judge and not the jury to make the final decision in imposing a death sentence.
However, “from a legal standpoint, the opinion goes well beyond Hurst on Sixth Amendment grounds,” says criminal defense attorney (and DPF board member) Robert Sanger. “The court addresses arguments we have been raising for decades here in California; that the jury must find the existence of aggravators and must find that they outweigh mitigators. Furthermore, we have argued that they must make these findings unanimously and beyond a reasonable doubt. The Delaware Supreme Court opinion adopted precisely those arguments.”
The California system would be unconstitutional under this decision but, of course, Delaware’s high court jurisdiction does not extend to this state, Sanger noted. “Hopefully, the California Supreme Court will read this with interest and finally recognize the compelling nature of these arguments. And, unless Delaware lawmakers now act to pass new legislation, Delaware will count as one more state demonstrating that the evolving standards of decency in this country no longer embrace the death penalty.”
A bill to abolish capital punishment in Delaware passed the state Senate in 2015, but was defeated in the House of Representatives in late January, after which sponsors said they would wait to re-introduce it pending the state supreme court’s review. The state had also put on hold any pending capital murder trials and executions for the 13 men on death row. Last week’s opinion said that the state’s General Assembly would have to decide whether to reinstate the death penalty, which at this point would be no easy task.
The Delaware News Journal quoted Delaware Governor Jack Markell as saying “I applaud the Supreme Court’s finding that the state’s death penalty law is unconstitutional. As I have come to see after careful consideration, the use of capital punishment is an instrument of imperfect justice that doesn’t make us any safer."
