By Randall Chase
Associated Press
DOVER, Del. — Lawmakers are poised to introduce bipartisan legislation to reinstate Delaware’s death penalty, which the state Supreme Court declared unconstitutional last year.
Under the bill to be introduced next week, the death penalty could not be imposed unless jurors unanimously find, beyond a reasonable doubt, the existence of at least one aggravating circumstance making the crime eligible for capital punishment.
Jurors also would have to unanimously find that each aggravating factor alleged by prosecutors had been proven beyond a reasonable doubt. They would then have to unanimously determine beyond a reasonable doubt — not just by a preponderance of the evidence, as the old law required — that the aggravating circumstances outweighed mitigating factors cited by the defense.
Finally, the judge would have to agree with the jury that aggravating circumstances outweighed the mitigating circumstances, and that the defendant deserves the death penalty. Conversely, a judge would have the discretion to sentence a defendant to life in prison, even if the jury found that the death penalty was warranted.
“Delaware has a long history of applying capital punishment cautiously, judiciously, and infrequently,” bill co-sponsor Sen. Dave Lawson, R-Marydel, said in a prepared statement. “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”
In August, a majority of Delaware’s Supreme Court justices said the state’s death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
That ruling came after the U.S. Supreme Court said Florida’s death sentencing law, which like Delaware’s gave judges the final say, was unconstitutional.
Earlier this month, Florida Gov. Rick Scott signed legislation requiring a unanimous jury recommendation before the death penalty can be imposed. That came after Florida’s Supreme Court struck down a law passed earlier in response to the U.S. Supreme Court decision that allowed the death penalty to be imposed by at least a 10-2 jury vote.
Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty. Alabama lawmakers are scheduled to consider a bill next week to prohibit a judge from imposing a death sentence when a jury has recommended life in prison.
Meanwhile, Delaware’s Supreme Court ruled in December that its earlier decision applied retroactively, sparing the lives of 12 men who had been on Delaware’s death row.
Democratic Gov. John Carney has said he supports the ruling declaring Delaware’s death penalty law unconstitutional but has not promised to veto legislation reinstating capital punishment.
“I wouldn’t rule out, however, supporting a death penalty that applied only to those convicted of killing a member of law enforcement,” Carney said in an email Monday. “In some cases, specifically behind prison walls, capital punishment may be our only deterrent to murder.”
Last month, a prison guard was killed during an inmate riot and hostage taking at Delaware’s maximum security prison.
Democratic Attorney General Matt Denn has said he would support a law requiring a unanimous jury recommendation before a judge could impose the death penalty.
“Recent court decisions also require jury unanimity beyond a reasonable doubt for all facts necessary for the imposition of the death penalty,” Denn spokesman Carl Kanefsky said in an email. “The attorney general will support legislation that applies these standards to Delaware’s death penalty.”