New legislation proposes to revive death penalty in Delaware

DOVER — Lawmakers on Tuesday announced legislation to put capital punishment back in place nearly three years after the state’s top court struck down the death penalty law.

The bill is expected to be filed in the coming days.

“I am familiar with multiple instances where criminals confessed to investigators that the possibility of the death penalty influenced their actions,” main sponsor Rep. Steve Smyk, a Milton Republican, said in a statement. “The reforms our bill will apply will restore an aspect of the Delaware Code that I believe deters crimes and protects the public.”

After trying for several years to end the death penalty through the legislature, activists triumphed in August 2016 when the Delaware Supreme Court ruled the existing death penalty law was unconstitutional.

In the opinion, which included dissension from one justice and partial dissension from another, the court concluded capital punishment as practiced in Delaware was in conflict with the Sixth Amendment, which provides for right to a jury trial.

The death penalty statute gave a jury the right to offer non-binding recommendations on sentencing death for convicted murderers, although a judge had the final discre tion. Unanimity was needed to determine if there were any aggravating circumstances but not whether they outweighed mitigating factors.

The U.S. Supreme Court in January 2016 overturned Florida’s capital punishment law, which contained some similar aspects to Delaware’s.

The forthcoming legislation would only allow executions in capital cases when a jury unanimously identifies at least one aggravating circumstance making the offense eligible for the death penalty and rules the aggravating factors outweigh any mitigating circumstances. Additionally, the presiding judge would have to approve the jury’s findings and determine the defendant was not mentally ill.

The extensive list of aggravating factors would include the victim being a member of law enforcement, the murder being “outrageously or wantonly vile, horrible or inhuman” or the crime being retribution for the victim testifying on criminal activity.

The measure is very similar to a 2017 bill. That legislation passed the House but never received a committee hearing in the Senate.

A vote this time around would likely be close in both chambers, with passage in the Senate being a tougher task.

Among those opposed to the bill is Attorney General Kathy Jennings, a Democrat. Through a spokesman, she said capital punishment “does not deter crime and has been disproportionately used against low-income defendants and people of color.”

Gov. John Carney, a Democrat, is against the death penalty but has said he is willing to allow a carve- out for individuals who kill members of law enforcement. His office did not respond to a request for comment.

But while opponents say the death penalty does not reduce crime and could lead to an innocent man or woman being executed, supporters are confident a capital punishment statute serves a purpose.

“While capital punishment will always be highly controversial and potentially divisive, I believe it should be available as an appropriate option for those convicted of our state’s worst crimes, such as the murder of police officers, correctional officers, and firefighters,” Rep. William Carson, a Smyrna Democrat, said in a statement.

As evidence the death penalty does protect Delawareans, backers note that in 2017, within 12 months of the Delaware Supreme Court’s ruling, two members of law enforcement — correctional officer Steven Floyd and state trooper Stephen Ballard — were killed in the line of duty.

Thirteen men were on death row when the state’s statute was overturned in 2016, and their sentences were eventually converted to life in prison.

Lethal injection is the only method of execution allowed by state law. A spokeswoman for the Department of Correction said the state currently does not have any of the drugs used to carry out death sentences and anticipates “the same challenges as any other jurisdiction seeking the drug or combination of drugs.”

Per the National Conference of State Legislatures, 31 states have a death penalty law.

Staff writer Matt Bittle can be reached at 741-8250 or mbittle@newszap.com. Follow @MatthewCBittle on Twitter.

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