Legislature moves closer to reinstating death penalty

DOVER — A bill to reinstate Delaware’s death penalty was released from committee Wednesday to be debated on the House floor. Seven of the 11-member House Judiciary Committee voted to move the bill forward after hearing lengthy testimony from police officials, church groups, various advocate organizations and others.

Of the 30 citizens who testified at the committee meeting, 21 spoke out against the bill.

The state has been without a death penalty since August when the Delaware Supreme Court concluded the statute as written violated the Sixth Amendment to the U.S. Constitution, which guarantees a right to a jury trial.

The majority of the court’s justices said the statute allowed judges too much discretion and didn’t insist on a unanimous jury ruling that a convicted defendant deserved execution.

House Bill 125, the new bill being sponsored by Rep. Steve Smyk, R-Milton, a past president of the Delaware State Trooper Association, would require that jurors be unanimous and beyond a reasonable doubt that a defendant should be executed.

Rep. James Johnson (D) New Castle opposes the death penalty during a House Judiciary Committee hearing at Leg Hall on Wednesday. (Delaware State News/Marc Clery)

However, a judge would be required to agree with the jury to have the sentence carried out — retaining the right to change the sentence to life in prison instead.

“Delaware has a long history of applying capital punishment cautiously, judiciously and infrequently,” Sen. Dave Lawson, R-Marydel, said in a statement. “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”

Delaware has a storied past with capital punishment. The death penalty was repealed in 1958 and then reinstated in 1961. Over the ensuing 55 years, it was struck down by the courts and subsequently altered by the General Assembly multiple times.

The legislature attempted to abolish it in the past two legislative sessions but failed both times. Last year’s effort stalled in the House after passing in the Senate.

Rep. Stephen Smyk (R) speaks about the death penalty during a House Judiciary Committee hearing at Leg Hall on Wednesday. (Delaware State News/Marc Clery)

Based on votes on 2015’s repeal bill and stated positions, the Senate appears to have 11 members opposed to capital punishment — the bare minimum to block the new bill.

However, just one flip could allow the measure to pass. Adding to the intrigue is the Feb. 1 inmate uprising at the James T. Vaughn Correctional Center that left Lt. Steven Floyd dead and the April 26 fatal shooting of state trooper Cpl. Stephen J. Ballard.

The recent incidents could lead to some legislators opposed to the death penalty to abandon their previous stance. Mere hours before the bill was discussed in committee on Wednesday, the annual Law Enforcement Memorial ceremony took place in front of Legislative Hall in Dover and paid special homage to Lt. Floyd and Cpl. Ballard.

Gov. John Carney, a Democrat, is opposed to capital punishment for convicted killers but has said he “wouldn’t rule out” backing a bill that allows for executing individuals who kill law enforcement officials.

During the committee, supporters of the bill said the death penalty helps keep law enforcement safe and can serve as a deterrent.

Law enforcement officers listen during a House Judiciary Committee hearing on the death penalty at Leg Hall on Wednesday. (Delaware State News/Marc Clery)

Opponents decried the death penalty’s alleged tendency to be disproportionately applied to minorities, the poor and those with mental illness and claimed the sentence doesn’t prevent capital crimes.

“I won’t argue that some offenders may deserve the death penalty, they well may,” said Greg Chute, minister for the Unitarian Universalists of Central Delaware as he addressed the House committee. “We know, however, that it doesn’t appease our sorrow or our loss.

“I know from personal experience that an execution does not bring closure — the pain and the suffering go on and on. Acting with violence in response to violence normalizes violence as a legitimate social response. It sends a message that it’s OK to kill or that killing is somehow justified.”

Although no one who was executed in Delaware has later been found innocent, several men on death row have been freed after errors in their trials came to light. Most recently, Isaiah McCoy was acquitted in January of a 2010 murder for which he was previously convicted and sentenced to death.

The state last conducted an execution in 2012.

“I stand in support of this bill on behalf of the over 700 Delaware State Troopers I represent as well as the many retirees,” Lt. Thomas Brackin, president of the Delaware State Troopers Association said to the committee. “We have seen over the years that there are some truly evil people that commit heinous crimes against innocent citizens in the state. We believe that you need to have the ultimate punishment for the ultimate crime.”

Opposing bill filed

On Tuesday, Rep. Sean Lynn, D-Dover, a judiciary committee member and outspoken opponent to House Bill 125, filed a bill of his own to restrict the methods of execution. House Bill 155 would bar the state from executing convicted killers by lethal injection or hanging — effectively leaving the state without the means to carry out a death sentence.

The European Union has banned the export of certain drugs used for execution, creating difficulties for states trying to carry out death sentences. Arkansas executed four inmates in eight days last month because its supply was set to expire, and the Utah Legislature reinstated the firing squad in 2015.
Delaware was the last state to perform a hanging when it executed Billy Bailey in 1996.

Two years ago, a Department of Correction spokesman said the state did not have a supply of drugs for lethal injection. The department could not be reached for comment Wednesday.

Rep. Lynn admitted he doesn’t expect his bill to pass but introduced it to make a statement.

“We are using a different variety of drugs which are not designed at all for the purpose of killing someone,” he said. “So, for example, when you have the lethal injection, it’s like three-drug cocktail. The first is an anesthetic so ostensibly you don’t feel what’s going to happen to you. So the anesthetic that they typically use the EU won’t supply to us, so we’re basically experimenting on people.”

His proposal had been in the works but was deliberately introduced Tuesday to coincide with the coming discussions about House Bill 125.

Staff writer Matt Bittle contributed to this report.

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