Effort to simplify state’s criminal code triggers new concerns

DOVER — When Delaware’s Criminal Code was adopted in 1973, it was less than 95 pages.

Today, it’s more than 407.

State lawmakers started an effort in 2014 to review the code with the goal of simplifying it and cutting out unnecessary, ineffective or outdated portions.

The code contains more than 100 misdemeanors and almost 100 felonies. In some instances, definitions and punishments are confusing or complex.

That’s what the Criminal Justice Improvement Committee, which consists of members of the Legislature and criminal justice system, says it wants to fix.

On Monday stakeholders met to provide an overview of the project. But, while several attendees praised the committee for its plan, others urged caution.

Law enforcement, prosecutors and victims’ groups are also raising concerns.

“We’re moving forward at a rate that says we’re not getting the questions answered and it’s this full steam-ahead kind of thing and that’s a little worrisome to me,” said Nancy McGee, coordinator of the Sexual Assault Network of Delaware. She questioned if the new code would contradict federal standards for rape and lessen the punishment.

Karen McGloughlin, director of the Office of Women’s Health in the Division of Public Health, voiced a similar sentiment.

“We don’t want to go back in time,” she said. “Women are not going to tolerate going back in time.”

The modified code, which has no timetable for completion, would clean up offenses added “piecemeal” over the decades. It would also make the text easier to understand, proponents say. Mandatory minimum sentences, for instance, would be simplified and made more consistent.

The process, however, is not a pure rewriting of the code.

“Bringing it back down to something that is understandable and useable for citizens, police, attorneys and judges, because I’ve heard people from every one of those groups admit that this code is very difficult to use and we’re not trying to take the teeth out of the law and we’re not trying to swing open prison doors for serious offenders,” said former New Castle County Police Chief Elmer Setting. “We’re trying to make it more transparent and useable for you.”

A draft report suggests using more accessible language, noting readers “must guess at the General Assembly’s intended meaning” at times.

It also calls for cutting down wordiness and merging several related, niche crimes into one broader category.

Other examples of potential changes cited by the report include creating levels of fraud based on the amount of money involved, placing petty theft and assault on different grades, and scaling property damage according to the degree of damage.

“A theft in value from $1,500 to $50,000 is a Class G felony,” states the report written by several public defenders and judges. “However, a theft valued from $50,000.01 to $100,000 jumps up three grades to a Class D felony, and a theft valued higher than $100,000 jumps up another two grades to a Class B felony.

“As a result, taking $100,000.01 in property is subject to the same punishment as manslaughter, assault by amputation, second degree rape and kidnapping without releasing the victim alive and unharmed. At the same time, theft of any amount less than $1,500 is a Class A misdemeanor.

“As a result, stealing a sandwich is subject to the same punishment as unlawful sexual contact, simple assault and highly sophisticated frauds like defrauding secured creditors and fraud in insolvency. The Proposed Code makes theft grading more proportional compared to other offenses by creating additional grade thresholds and lowering the highest available grade of theft to the equivalent of a Class D felony.”

Tom Brackin, president of the Delaware State Troopers Association, said Wednesday the union has provided input on the process but will not take a stance in favor or against until a finished product is issued.

“Obviously, any changes to the code that would potentially adversely impact the troopers’ ability to do their jobs or endanger their safety or that we see as a lessening of any potential penalties against serious violent crime are things that we have a concern about,” he said.

Mr. Brackin also questioned whether a budget crunch means 2017 may not be right time for such a revamp. However, he agreed that some portions of the code are unneeded or overly complicated.

In June, University of Pennsylvania professor Paul Robinson, a recognized expert in criminal law, appeared before the General Assembly’s Joint Finance Committee to advocate for changing the code.

However, the Department of Justice raised concerns at the same meeting.

“The code as it’s written now has existed for 40 years. All of the terms have been interpreted by the courts. Prosecutors and law enforcement officers know what they mean. And when you eliminate all of them, create brand-new ones and hit the reset button, you create a tremendous amount of uncertainty that we think is a serious public safety issue,” Attorney General Matt Denn said at the time.

A department spokesman on Monday referred back to previous comments made by Mr. Denn.

Monday’s public hearing also featured a presentation on bail reform, something Chief Justice Leo Strine has advocated.

The courts, Department of Justice, Department of Corrections and Office of Defense Services are all involved in reviewing bail procedures. Current recommendations include placing more focus on individualized assessments rather than using a broad approach designed for everyone who is arrested. Also, mandating a review of a detainee’s circumstances after he or she has been held for 72 hours.

“If you are detained, you are more likely to face conviction, you’re more likely to plead guilty, you’re more likely to have a sentence of incarceration because you’ve already served one so you might end up with a time-served sentence but you’re still going to have an incarceration sentence and your length of incarceration is higher,” Chief Magistrate Alan Davis said. “Delaware’s data bears all of that out.”

A public hearing will be held at 6 p.m. today in Lewes at the University of Delaware’s Virden Retreat Center. The purpose — officials want to give Delawareans another chance to provide input.

The new code, and possibly other changes as well, will eventually be introduced as legislation.

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