Bill to reinstate death penalty announced

DOVER — Lawmakers on Wednesday filed legislation to reinstate the death penalty, which was struck down by the Delaware Supreme Court more than three years ago. The measure would replace a capital punishment proposal that has been stuck in committee since May.

The bill, which is expected to be filed over the next six weeks, would allow a judge to apply the death penalty in murder cases only when a jury unanimously agrees there is at least one eligible aggravating circumstance that outweighs any mitigating factors.

Rep. Danny Short, center

While the previous measure offered 22 potential aggravating circumstances, the newest proposal contains only four: mass murder (the killing of at least three people in a public place), a prior murder conviction involving the defendant, the killing being motivated by a hate crime and the offense being “outrageously or wantonly vile, horrible or inhuman.”

The circumstances in the first bill are not only more numerous, they are also more specific, such as the crime being committed during an escape from custody, against someone taken hostage and used as a human shield, against a law enforcement officer in the course of his or her duties and against a pregnant woman, to name a few.

“I realize that with nearly two dozen aggravating circumstances, the debate over our former capital punishment statute may just be too big for some legislators to get their arms around,” House Minority Leader Danny Short, a Seaford Republican, said in a statement. “The Egregious Crimes Accountability Act refines the issue by reserving capital punishment only to those murders committed under the worst of aggravating circumstances.”

Sen. Dave Wilson, a Lincoln Republican, in a statement cited the February 2017 killing of correctional officer Steven Floyd at the James T. Vaughn Correctional Center, noting the only person found guilty of murder in the case was already serving a life sentence.

The bill does not define mitigating circumstances so as to give the defense more freedom to make a case for the accused’s innocence.

Delaware’s death penalty statute was invalidated by the state’s top court in August 2016, seven months after the U.S. Supreme Court ruled Florida’s capital punishment law was unconstitutional. The Sunshine State’s law mandated a judge, not a jury, find aggravating factors needed to sentence a person to death.

Delaware had a similar system, with a jury providing non-binding recommendations on sentencing death for convicted murderers and a judge making the final decision. Unanimity was needed to determine if there were any aggravating circumstances but not whether they outweighed mitigating factors.

“Because the respective roles of the judge and jury are so complicated under § 4209, we are unable to discern a method by which to parse the statute so as to preserve it,” then Chief Justice Leo Strine wrote in reference to the portion of the state code containing the death penalty statute, with Justices Randy Holland and C.J. Seitz concurring.

“Because we see no way to sever § 4209, the decision whether to reinstate the death penalty — if our ruling ultimately becomes final — and under what procedures, should be left to the General Assembly.”

Rep. Short said the new bill “fully addresses all of the issues the Supreme Court cited and would restore capital punishment as an option when prosecutors are dealing with our state’s worst offenders.” He is confident prosecutors and judges have properly applied the death penalty in the past, seeking or imposing it only after plenty of deliberation.

Delaware lawmakers made several attempts to overturn the death penalty before the state Supreme Court ultimately struck it down.

The version introduced in May has not received a hearing in the House Judiciary Committee despite chamber rules stating a bill should get a committee hearing within 12 days because Rep. Sean Lynn, a Dover Democrat who chairs the committee, has concerns about the measure’s constitutionality. Rep. Lynn said Wednesday he has not seen the newest bill.

Opponents of capital punishment argue it is applied disproportionately to the mentally ill, the poor and minorities, can result in an innocent person being executed and does not make the population safer. Gov. John Carney is against the death penalty.

Twenty-nine states have capital punishment laws.