Delaware

Delaware

Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

Delaware Supreme Court Hears Oral Argument on Constitutionality of Its Death Penalty Statute

The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state's death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida's sentencing scheme, saying that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough." Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware's system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. "The Sixth Amendment requires not a judge, but a jury, to find each fact," he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware's weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida's new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death Sentence

UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.

Delaware Supreme Court to Consider Constitutionality of State's Death Penalty Law

Delaware public defenders have filed a brief in the Delaware Supreme Court arguing that the state's death sentencing procedures are unconstitutional. In their brief, the defenders describe "multiple constitutional problems" that they say "require Delaware’s death penalty scheme to be substantially restructured." These include several procedures that they say are unconstitutional under the U.S. Supreme Court's recent 8-1 decision in Hurst v. Florida. Delaware allows juries to render non-unanimous advisory sentences on the question of life or death, but also requires judges to make findings about the relative weight of aggravating and mitigating circumstances. The Hurst decision "requires a jury, not a judge, to find each fact necessary to impose a sentence of death." The filing argues that in a several states, the highest courts and legislatures have acknowledged that the Sixth Amendment also "requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each." The defenders' pleading squarely challenges the constitutionality of allowing a death sentence based upon a non-unanimous jury recommendation. Delaware, Alabama, and Florida are the only states that allow a judge to override a jury's sentencing recommendation and impose a death sentence when the jury has recommended life, and the only states that permit a judge to impose the death penalty after a non-unanimous jury recommendation for death. But following the Hurst decision, Florida has no valid procedures in place to pursue capital sentencing. The defenders argue that this demonstrates "a nationwide consensus against non-unanimous jury verdicts in capital cases. No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous. That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality." Delaware prosecutors have 30 days to respond to the defense arguments. All death penalty proceedings in Delaware remain on hold pending the state court's resolution of this issue.

Delaware Supreme Court Overturns Third Death Sentence in Two Years Due to Prosecutorial Misconduct

For the third time in two years, the Delaware Supreme Court has reversed the conviction of a death row inmate because his trial was tainted by prosecutorial misconduct. On December 14, the court ordered a retrial for Chauncey Starling, who was convicted in 2003 of killing two people in a Wilmington barber shop, in part because prosecutors had failed to disclose that they had dropped charges against a key witness for violating his parole. Instead, prosecutors informed defense counsel that those charges were still pending. Earlier this year, the court overturned the conviction of Isaiah McCoy because of misconduct by a deputy attorney general, who was later suspended from practicing law as a result of seven ethical violations in the case. In 2014, Jermaine Wright was granted a new trial because prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime. No physical evidence linked Starling to the barbershop murders, as well. The court ruled that the misconduct, in combination with two prejudicial failures by defense counse, had denied Starling a fair trial. The court wrote, "Like all citizens, [Starling] is entitled to a fair trial that adheres to the procedural requirements with effective representation. Because those procedural requirements were not met, and counsel defending him was ineffective, we are compelled to reverse and remand for a new trial and proceedings not inconsistent with this opinion." 

STUDIES: Requiring Jury Unanimity Would Decrease U.S. Death Sentences by 21%

The U.S. Supreme Court heard oral argument on October 13 in Hurst v. Florida, a case challenging provisions in Florida's death penalty statute that do not require jurors to unanimously agree to the facts that could subject a defendant to a death sentence or to reach unanimity before recommending that the judge sentence a defendant to death. Florida is one of just three states that does not require a unanimous jury verdict when sentencing someone to death. A study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that requiring jury unanimity in Florida, Alabama, and Delaware would have caused a dramatic drop in death sentences over the last 5 years. Overall, the three states would have returned 26 death sentences since 2010, instead of 117 - a 77% drop - and Florida would have imposed 70% fewer death verdicts. The three states that do not require unanimity in death sentencing have produced a disproportionate share of the nation's death sentences, accounting for 28% of all U.S. death sentences since 2010. Had these states followed the sentencing system used by every other death penalty state, the total number of death sentences imposed in the United States  would have decreased by 21%. (Click image for full infographic.)

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