Del. Supreme Court asked to review death penalty law
The U.S. Supreme Court struck down Florida's death penalty statute this month
By Randall Chase
DOVER, Del. — A judge is asking the Delaware Supreme Court to determine whether the state's death penalty law meets constitutional muster in light of two recent U.S. Supreme Court rulings.
In certifying several questions of law to the Supreme Court on Monday, Superior Court Judge Paul Wallace noted that more than two dozen capital murder cases are pending in Delaware. Attorneys in three of those cases have filed motions asking that Delaware's death penalty law be declared unconstitutional.
Meanwhile, state lawmakers are poised for a final vote this week on a bill that would abolish Delaware's death penalty.
The U.S. Supreme Court struck down Florida's death penalty statute this month in a case involving convicted killer Timothy Lee Hurst because juries play only an advisory role in recommending death, allowing the judge to reach a different decision. Delaware's sentencing scheme is similar to Florida's.
Delaware judges have final authority in determining which aggravating factors in favor of death exist and whether any circumstances suggest that life in prison would be a more appropriate punishment. If the judge finds that the aggravating factors outweigh the mitigating factors, he is required by law to impose a death sentence.
"Post-Hurst, it is unclear whether this second 'critical finding' — which not only permits, but requires, the imposition of a death sentence — comports with constitutional requirements as 'the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,'" Wallace wrote, quoting the Florida ruling.
The Florida ruling was followed by a decision last week in which the high court reversed a Kansas Supreme Court ruling that had overturned the death sentences of three men.
The Kansas court said jurors should have been told that evidence of the men's troubled childhoods and other factors weighing against a death sentence did not have to be proven beyond a reasonable doubt. But the U.S. Supreme Court said there is no constitutional requirement for such a jury instruction.
Under Delaware's law, a judge can engage in the balancing of aggravating and mitigating circumstances only after a jury finds unanimously, and beyond a reasonable doubt, that at least one statutory aggravating factor exists. The judge can take note of that statutory aggravator, but can also decide that others exist.
Wallace, after receiving input from the Delaware attorney general's office and public defender's office, asked the state Supreme Court whether a judge, independent of the jury, can find the existence of any aggravating circumstance and, if not, whether a jury's determination must be unanimous and beyond a reasonable doubt. The justices also were asked whether a jury must determine if aggravating circumstances outweigh mitigating circumstances and, if so, whether its decision must be unanimous and beyond a reasonable doubt. Finally, Wallace asked whether any part of Delaware's sentencing law found to be unconstitutional could be severed from other provisions of the law.
While Delaware's courts consider the issue, the state House is scheduled to vote Thursday on whether to give final legislative approval to a bill abolishing Delaware's death penalty. The bill, which narrowly cleared the Senate last year, had been stalled in the House Judiciary Committee until last week, when the chairman agreed to send it to the House floor for a vote.
Democratic Gov. Jack Markell has said he will sign the bill if it reaches his desk.
Copyright 2016 The Associated Press
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