Attorney general, state panel spar over criminal law changes

DOVER — An effort to revise the Delaware criminal code is moving forward, with plans to present legislation next month despite strong opposition from the state’s top lawyer.

Created in 2014 through language included in the budget bill, the Criminal Justice Improvement Committee has spent several years looking at reforming the code to remove redundancies, inefficiencies and contradictions.

“It’s gotten really unmanageable in many ways,” Superior Court Judge and CJIC member Ferris Wharton said of current criminal law in the state.

Members of the committee convened Wednesday to review a draft of the code, which is expected to be finalized in the ensuing weeks so it can be filed as a bill when the General Assembly returns next month.

The judiciary and legislature have worked with law enforcement and private law organizations to craft a simpler, revised code, but, according to several participants, the Department of Justice has been reluctant to cooperate.

Attorney General Matt Denn disputed that characterization. Asked several questions about the project after the meeting, he referred repeatedly to a document his agency has sent to the committee that lays out concerns.

“We submitted 73 pages of very detailed written comments, so I think that speaks for itself,” he said.

In response to a question about if he would support the final product, Mr. Denn noted no bill has been filed yet.

In the submission to the CJIC, the agency wrote substantive changes could “create real public safety concerns” and touted “sweeping reforms” it has backed since Mr. Denn took office three years ago.

“The DDOJ successfully prompted significant changes to the minimum mandatory sentences imposed by the state’s habitual offender statute,” the document reads. “Additionally, DDOJ proposed a major overhaul of the state’s criminal drug statutes, which is currently in the Senate Judiciary Committee awaiting release to the full Senate.

“The DDOJ routinely recommends other discrete areas of the criminal code that the General Assembly might consider reforming. But there is no articulated need for a complete rewrite of the criminal code.”

Several speakers, including Judge Wharton and Chief Justice Leo Strine, took thinly veiled shots at the Department of Justice Wednesday, and Sen. Harris McDowell, D-Wilmington, said afterward he is disappointed Mr. Denn has not embraced the process.

“It’s very easy to defend the status quo on almost anything. You have the established ground when you do that, but I think in this case the status quo gets wobbly after 40 years of … (ad hoc additions) and they’ve been in response, reaction to something, without a lot of thought usually,” Sen. McDowell said.

The current criminal code, based off the American Law Institute’s Model Penal Code, was adopted in 1973. At the time it was 95 pages. Now, it is more than 400 pages, and crimes are scattered throughout the Delaware Code rather than being contained in one section.

“There is no all-encompassing Delaware criminal code right now despite the fact that it’s four times longer than what we started with,” Judge Wharton said.

The draft code, for instance, makes carjacking a subset of robbery rather than a separate crime and does the same for home invasion, placing it under burglary. It includes a list of offenses in order of severity, something not contained in current law, and provides a table showing what offense each new crime corresponds to.

But it also, according to the Department of Justice, is “more cumbersome and confusing” and “suggests profound changes in the state’s overall criminal sentencing, including elimination of existing minimum mandatory sentences for a broad range of crimes where the General Assembly has previously deemed them appropriate, and a wholesale change to the practice of habitual offender sentencing which would cause many three-time violent felons who receive mandatory sentences under the current code to no longer receive such sentences.”

The agency’s submission cites a comment by the Delaware Coalition against Domestic Violence, which criticizes “a preference to condense a broad spectrum of crimes into a general category of crime” in the draft code.

A stated goal of the project is to “consolidate” criminal offenses.

“I don’t think behaviors have changed all that much, but we’ve made more crimes,” Judge Wharton said.

The draft code, crafted with the assistance of University of Pennsylvania Law School professor Paul Robinson and his former student Matthew Kussmaul, is not designed to represent a shift in attitudes or change the nature of punishments set down by the General Assembly.

If the bill passes, it would not go into effect immediately, allowing law enforcement, judges and others time to adjust to the changes.

“Will we have to spend some time rejiggering police academy training? Sure. Will we then have the benefits of that for 25, 40 years?” Chief Justice Leo Strine asked hypothetically.

Rep. J.J. Johnson, D-New Castle, applauded the effort, noting possession of crack cocaine has historically been punished more harshly than possession of cocaine, which disproportionately impacted black Americans. A 1986 bill passed by Congress made a sentence for being caught with 5 grams of crack the same as a sentence for being caught with 500 grams of cocaine.

The recent opioid epidemic is seen as “more a medical problem than a criminal offense and it took us a while to learn that, and meanwhile it had devastating effects of certain parts of the community,” he said, referring to the impact crack and crack-related arrests had on blacks.

While the project has support from several quarters, the Department of Justice remains strongly opposed.

“If enacted, the proposed criminal code would make almost the entire body of Delaware criminal case law obsolete,” the agency wrote. “All terms, even those previously defined, would be subject to ‘relitigation.’

“This is so because many terms and concepts in the current code have been defined by the context in which they were found, or the legislative intent deduced from an assessment of the legislative history. The findings and legislative history would, of course, become obsolete.”

A spokesman for Gov. John Carney said in an email, “The governor appreciates the time and effort that a lot of smart people have put into the rewrite and he’s taking a hard look at the recommendations that the group has produced.”

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