Delaware lawmakers face competing death penalty bills

March 19, 2020 GMT

DOVER, Del. (AP) — Delaware’s legislative session has been postponed indefinitely because of the new coronavirus, but legislation awaiting action by lawmakers when they return includes competing bills regarding capital punishment.

A Republican-sponsored House bill introduced last week calls for the re-establishment of Delaware’s death penalty, which the state Supreme Court declared unconstitutional in 2016.

A competing House bill introduced by Democrats would enshrine Delaware’s existing ban on capital punishment by amending the state constitution. That bill requires two-thirds votes by both the House and Senate in two consecutive General Assemblies.

The GOP measure is called the Egregious Crimes Accountability Act. It would revise Delaware’s old death penalty law to ensure compliance with rulings by the U.S. Supreme Court and Delaware Supreme Court.

A majority of Delaware’s Supreme Court justices declared Delaware’s death penalty law unconstitutional in 2016 because it gave judges too much discretion. That ruling came after the U.S. Supreme Court said Florida’s death sentencing law, which also gave judges the final say, was unconstitutional.

Under the GOP proposal, which has a single Democratic cosponsor in both the House and Senate, jurors would have to find unanimously and beyond a reasonable doubt that a defendant should be executed. The judge would have to agree with the jury on the death penalty but could also sentence a defendant to life in prison despite the jury’s finding.

In order to declare that a defendant deserves the death penalty, a jury would have to find that at least one “statutory aggravating circumstance,” exists, and that all aggravating circumstances outweigh all mitigating circumstances.

The bill allows only four statutory aggravating circumstances: mass murder, a previous murder conviction, a “horribly inhumane” murder, and murder committed as a hate crime. It defines mass murder as conduct resulting in three or more deaths in a public place. A “horribly inhumane” killing is defined as “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device, weapon of mass destruction, or poison or the defendant used such means on the victim prior to murdering the victim.”

The bill also prohibits capital punishment for a defendant found guilty but mentally ill.

Democratic Gov. John Carney has said he is opposed to reinstating Delaware’s death penalty, but that he would probably sign a bill allowing capital punishment if it were restricted to killers of law enforcement officials.

Delaware’s death penalty has had a tortuous history over the past 60 years.

In 1958, Republican Gov. J. Caleb Boggs signed a bill abolishing the death penalty, making Delaware only the second state in the nation, after Missouri, to abolish capital punishment.

Three years later, lawmakers reinstated the death penalty after the killings of an elderly Sussex County farm couple. Democratic Gov. Elbert Carvel vetoed the measure, but lawmakers overrode him.

In 1991, lawmakers held a special session to change Delaware’s death penalty law, giving judges the final say on whether to impose the death penalty after considering a jury’s recommendation. The move followed public outrage after four men convicted of robbing and murdering two armored car guards received life sentences after jurors could not unanimously agree on the death penalty.

The General Assembly rewrote Delaware’s death penalty law again in 2002 to ensure compliance with a U.S. Supreme Court ruling. The old law allowed juries to make a recommendation but gave the judge the final say. The revised law required a unanimous jury vote to impose the death penalty.

Delaware’s death penalty law came under scrutiny again in 2016 after the U.S. Supreme Court struck down Florida’s death penalty sentencing statute. That statute required a judge, not a jury, to find the existence of an “aggravating circumstance” making a defendant eligible for the death penalty.

Delaware’s law was similar to Florida’s, but prosecutors argued that it was constitutional because a jury had to make the initial decision on whether a defendant was eligible for the death penalty.

Under Delaware’s law, a jury had to find unanimously and beyond a reasonable doubt that a statutory aggravating factor existed. Once that decision was made, however, a judge could determine whether other aggravating circumstances exist. It was also up to the judge to determine whether aggravating factors outweighed mitigating factors.

The state Supreme Court determined that the law was unconstitutional because it allowed a judge, independently of the jury, to find the existence of one or more aggravating circumstances, and because it did not require jurors to be unanimous in deciding whether any non-statutory aggravating circumstances exist. The justices said the law also was flawed because it allowed the judge to make the crucial final determination on whether aggravating circumstances outweighed mitigating factors.