Death penalty back on the table: New legislation will aim to restore capital punishment

The Department of Correction’s execution chamber has not been used since 2012. The state currently has no death penalty, but lawmakers are looking to change that. (Submitted photo/Department of Correction)

DOVER — Lawmakers plan to file a bill restoring the death penalty next week, once again putting one of Delaware’s most controversial issues in the spotlight.

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

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 for convicted killers.

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 August ruling, with Justices Randy Holland and Collins Seitz concurring.

Four months later, the court concluded that individuals sentenced to death before the statute was struck down cannot be executed.

On Monday, lawmakers from both parties announced they plan to introduce the “Extreme Crimes Protection Act” April 4.

The bill would require a jury to unanimously find at least one aggravating factor that makes the crime eligible for the death sentence.

It would also mandate that not only must the jury unanimously determine the aggravating factors outweigh the mitigating factors but the judge must agree.

David G. Lawson

“Delaware has a long history of applying capital punishment cautiously, judiciously and infrequently,” Sen. Dave Lawson, a Marydel Republican, 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 long history 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 The death penalty was repealed in 1958 and then reinstated in 1961.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.

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 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 in which one correctional officer was killed.

The incident could lead to some legislators who have voted for repeal to abandon their previous stance.

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

Supporters say the death penalty helps keep law enforcement safe and can serve as a deterrent to some crimes. On the other hand, opponents claim it is disproportionately applied to minorities, the poor and those with mental illness and does not prevent crime.

“There are a number of reasons why bringing back the death penalty is a bad idea,” Chief Defender Brendan O’Neill said in a statement. “First, despite its supporters’ claims, there is no evidence that the death penalty is a deterrent.

“Second, history has proven that the death penalty has been imposed in a racially discriminatory manner. Third, Delaware’s application of the death penalty has been error prone, resulting in years of costly litigation often leading to reversals of death sentences. Fourth, the death penalty is very expensive. Investigative, prosecution, defense and court costs in death penalty cases are extremely high.”

But police and correctional officers are generally in support of capital punishment.

“I spent half of my life as a police officer, investigating, pursuing and arresting some of the most heinous criminals in our state,” Rep. Larry Mitchell, an Elsmere Democrat who is also a former police officer, said in a statement. “Capital punishment is the most serious sentence we as a state can carry out. This legislation sets a higher standard, which reserves the punishment for only the most extreme cases.”

Rep. Sean Lynn, a Dover Democrat who co-sponsored the repeal bill in the prior General Assembly, re-emphasized Monday his opposition to capital punishment, calling it “state-sponsored murder.”

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.

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