GOP legislators vow to revive death penalty

DOVER — The state Supreme Court’s ruling Tuesday that the death penalty as currently practiced in Delaware violates the U.S. Constitution was a source of elation for opponents of capital punishment.

Rep. Sean Lynn, D-Dover, prime sponsor of House legislation to repeal the death penalty for convicted murderers, said at an unrelated bill-signing Thursday, “God is smiling upon this state.”

He was even more elated on Facebook, describing himself as “at a loss for words” and “more convinced than I ever have been that what is right will prevail in the end.”

But few issues generate as much passion as capital punishment. Although the state’s high court has blocked executions, the issue is far from over.

On Friday a group of 15 Republican lawmakers issued a statement pledging to file legislation next year to restore capital punishment.

“In concert with Delaware’s leading police organizations, we maintain that capital punishment can serve as a deterrent, possibly preventing the worst of crimes from ever being committed,” they said. “We also believe that the death penalty is the only appropriate punishment for some offenses of such a heinous nature that no other sanction would be adequate.

“Until this week, Delaware was one of 31 states that authorized capital punishment. Unlike some of those jurisdictions, the First State has a long history of applying it cautiously, judiciously and infrequently.

“The ruling by the Delaware Supreme Court is an opportunity to craft a new, stronger capital punishment statute that not only meets constitutional standards, but also potentially contains safeguards to further augment the high integrity of the process it will replace.”

There is no guarantee such legislation would be successful, and even if it is, it could be vetoed by the state’s chief executive: U.S. Rep. John Carney, the Democrat running for governor, announced Tuesday he opposes the death penalty.

His campaign manager, Cerron Cade, declined to speculate on whether Rep. Carney would sign a bill re-instating the death penalty as governor but said he would be opposed to such legislation.

The two Republicans seeking the governor’s office both support the death penalty.

The law was struck down when the state’s high court concluded it conflicts with the Sixth Amendment, the right to a jury trial. The court reviewed the capital punishment statute after the U.S. Supreme Court in January ruled Florida’s death penalty law, which had similarities to Delaware’s, was in violation of the Constitution.

Until Tuesday, a jury provided non-binding recommendations on sentencing death for convicted murderers, with a judge issuing the final decision. Unanimity was needed to determine if there were any aggravating circumstances but not whether they outweighed mitigating factors.

Lawyers argued their cases in front of the Supreme Court in June, with the Public Defender’s Office calling the state’s death penalty law unconstitutional and the Delaware Department of Justice taking the opposite viewpoint.

In Tuesday’s ruling of Rauf v. State of Delaware, three justices concurred, while one dissented and one partially dissented.

Questions remain, however, and not just over whether an attempt to pass a new law will be successful.

The fate of the 13 men currently on death row remains up in the air.

“The crucial issue is whether the Rauf decision handed down by the Supreme Court the other day applies retroactively to people sentenced to death,” Chief Defender Brendan O’Neill said.

The most likely scenario is lawyers representing those inmates file a motion to review the judgment, which could lead to a ruling that Rauf does indeed affect those awaiting execution.

Mr. O’Neill was unsure what court would handle that motion, noting the state is in uncharted waters.

Death row inmates are generally represented by the Federal Public Defender for the District of Delaware, according to Mr. O’Neill.

The Department of Justice, meanwhile, can still appeal to the U.S. Supreme Court. The agency has 90 days from the date of the decision to file.

The Supreme Court rejects about 98 percent of the appeals it receives, and those that are accepted must then be heard before the justices, meaning the question of the law’s constitutionality could sit in the courts for more than a year.

A spokeswoman for the Department of Justice said in an email attorneys were still analyzing the case and declined to comment further. Attorney General Matt Denn was not available for comment, Nicole Byers said.

Further reaction

Gov. Jack Markell, a Democrat, praised the ruling in a statement. He pointed to “the examples of flawed testimony, innocent people on death row being exonerated and other facts that weigh strongly against the use of capital punishment” as he explained his hope the ruling “will mean that we never see another death sentence in our state.”

His possible successor, Rep. Carney, had not previously described himself as an avowed death penalty opponent. Rep. Carney said last month he had been a supporter of capital punishment while serving as lieutenant governor from 2001 to 2009, but had begun to doubt it since and was now uncertain.

“As a former member of the Board of Pardons, I have had more occasion to contemplate the death penalty than most,” he said in a statement Tuesday. “Over the last several years, after a lot of study and reflection, I’ve come to the conclusion that it’s a punishment that is too flawed for it to be considered fair or just. I support the Supreme Court’s decision in its ruling.”

His opponent in the race, Republican state Sen. Colin Bonini, on the other hand, said the ruling sends a strong message that Delaware tolerates criminal behavior.

“I think this is just more evidence that we are on this ‘soft on crime’ kick in Delaware, and we’ve got to turn it around,” he said.

Fellow Republican candidate Lacey Lafferty, a former state trooper, also expressed dissatisfaction with the ruling.

“As a law enforcement officer, I can guarantee it is a deterrent. A lot of people need to quit Googling and finding all these studies that (say otherwise),” she said.

Police officers have been perhaps the most vocal and most influential group opposing repeal, arguing it would make communities less safe and increase the risks police face.

Sen. David Lawson, a Marydel Republican who also has worked as a state trooper, disagreed with the court’s ruling. He was one of 15 to sign the Friday open letter in which Republicans announced they would attempt to bring back capital punishment next year.

But Sen. Karen Peterson, D-Stanton, one of the General Assembly’s strongest repeal advocates, was skeptical if legislators would be able to re-instate the death penalty.

“It’s a real different thing to have to vote to kill people as opposed just to vote to leave the status quo,” she said.

Senators passed a repeal bill in the past session, but the measure failed in the House, meaning the Senate could be the chamber blocking death penalty legislation this time around.

While 11 of the Senate’s 21 members backed abolishing executions in 2015, the upcoming elections could change the landscape and potentially give supporters of the death penalty enough votes to force legislation through both chambers.

Sen. Peterson, who is not running for re-election after 14 years in the legislature, said she considered the death penalty issue when deciding if she would seek another term and concluded the Supreme Court was likely to overturn capital punishment and she had done as much as possible.

Next year, legislators will try to restore capital punishment, meaning the issue will remain in the forefront of many Delawarean’s minds even if the Department of Justice does not appeal.

Both sides have their heels dug in.

“It’s a continuation of this message that unfortunately big government frequently cares more about perpetrators than about victims and this is more evidence of soft on crime political culture that I think we need to arrest and reverse,” Sen. Bonini said.

But for now, repeal advocates are celebrating a decision they feel is long overdue.

“We call on all Delawareans to honor this ruling by our highest court and oppose any effort by the General Assembly to ‘fix’ our death penalty statute,” American Civil Liberties Union of Delaware Executive Director Kathleen MacRae said in a statement. “The death penalty is an antiquated system broken beyond repair. It has no place in our criminal justice system.”

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