Death row legality case to be heard Wednesday


DOVER — The Delaware Supreme Court will hear a case Wednesday that could decide the fate of the 13 men currently on the state’s death row.

In August, the court threw out the death penalty, ruling a portion of it was unconstitutional. However, the justices did not issue a ruling on whether the decision was retroactive, meaning the individuals already sentenced to death still face execution.

Derrick Powell

Derrick Powell

In October, lawyers for convicted murderer Derrick Powell submitted a brief arguing the ruling should apply to Powell and the other 12 men awaiting death, bringing the issue to the forefront.

While the case is superficially focused on Powell, who killed Georgetown police officer Chad Spicer in 2009 and was sentenced to death two years later, it could reverberate well beyond him.

A broad decision could change sentences for those already on death row to life in prison or it could affirm their convictions.

The Supreme Court will hear arguments from Powell’s lawyers and the Department of Justice Wednesday at 10.

August’s ruling came about, justices said, because the Delaware death penalty violated the Sixth Amendment, which guarantees right to a trial by jury. The law did not require the jury to rule unanimously on whether aggravating circumstances outweighed mitigating factors and gave the judge final discretion to sentence death.

Because the unconstitutional provision was so intertwined with the rest of the law, justices were “unable to discern a method by which to parse the statute so as to preserve it,” Chief Justice Leo Strine wrote in the landmark August ruling, with Justices Randy Holland and Collins Seitz concurring.

In court filings, Powell’s lawyers said the August ruling should apply to the inmate. Any other decision, wrote Patrick Collins and Natalie Woloshin, would be “a ratification of a 40-year misstep that is anathema to our understanding of the Sixth Amendment.”

“If Derrick Powell is executed, it will be because he had the misfortune to be sentenced during a period of constitutional jurisprudence that has now been recognized as misguided, and corrected,” the lawyers wrote.

The Department of Justice, contrast, argued the August ruling is a “procedural, not substantive, change” and noted the death penalty itself was not found unconstitutional.

“‘No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation,’” wrote Chief of Appeals Elizabeth R. McFarlan and Deputy Attorney General John R. Williams, quoting U.S. Supreme Court Associate Justice John Marshall Harlan II.

Five separate briefs have been submitted by organizations or individuals supporting Powell’s claims. Among those filing the briefs are lawyers for former death row inmate Luis Cabrera, whose death sentence was overturned in June 2015. Appeals in the case have been stayed while Powell is deliberated.

The American Civil Liberties Union of Delaware and the ACLU Capital Punishment Project submitted a brief together, arguing the Constitution’s protection against cruel and unusual punishment prevents discipline that goes against the “‘evolving standards of decency that mark the progress of a maturing society.’”

The state disputes the briefs in a reply sent to the court last month, writing that “changing the state’s retroactivity standards will affect not only the Delaware death row inmates, but potentially all Delaware inmates who may file an untimely subsequent motion for state postconviction relief.”

Regardless of the court’s ruling, however, that decision could soon become moot. Fifteen Republican lawmakers announced in August they intend to bring legislation to reinstate the death penalty.

The House of Representatives voted down a repeal attempt last year, but the Senate may have the votes to block a bill bringing back capital punishment. While senators passed legislation abolishing the death penalty in each of the past two sessions — including with the bare minimum of 11 votes in 2014 — the makeup of the chamber has changed slightly.

Sen. Jack Walsh, a Stanton Democrat who is replacing repeal champion Karen Peterson, said Friday he will vote against reinstating capital punishment. Fellow new Sen. Anthony Delcollo, R-Elsmere, said he would support such a bill only if it is well-written and addresses the concerns raised by the Supreme Court.

Sen. Delcollo replaces repeal supporter Patricia Blevins, a Democrat.

Sen. Bethany Hall-Long, D-Middletown, voted against abolishing the death penalty but has since changed her mind. However, she will be giving up her seat in January to become lieutenant governor, meaning the ensuing special election could determine which side gets the needed 11 votes.

Gov.-elect John Carney, a Democrat, said in October he would “probably” veto legislation reinstating capital punishment.

The state last performed an execution in 2012.

The arguments can be viewed live Wednesday at

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