Delaware Voice Richard H. Morse

Last week in an 8 to 1 decision the U.S. Supreme Court ruled that the Florida death penalty was unconstitutional. Applying the reasoning of that decision, Hurst v. Florida, to the current Delaware death penalty statute should result in it also being found unconstitutional. If that happens, it will be the fourth time since 1972 that a Delaware death penalty statute has been invalidated.

In 1972, as the Delaware Criminal Code was being enacted, the U.S. Supreme Court decided Furman v. Georgia, which rendered the new Delaware death penalty law unconstitutional, so the legislature amended the statute. A few years later, in 1977, another Supreme Court ruling, Woodson v. North Carolina, made the amended statute unconstitutional, so Delaware adopted yet another version. This corrected statute included the fundamental requirement that, before the state could execute a defendant, the jury would have to unanimously decide upon death. This unanimity requirement was (and still is) shared by the overwhelming majority of death penalty states.

In 1991, Delaware eliminated the unanimity requirement and turned the jury vote on life or death into a mere recommendation, giving the judge alone the power to make the life or death determination. In 2002, another U. S. Supreme Court decision demonstrated that the 1991 statute was unconstitutional. The legislature changed the law again, but left the life or death determination in the hands of a single judge. That has now placed the validity of the 2002 Delaware statute in doubt.

The current Delaware statute requires a “hybrid” form of sentencing to decide whether someone who has been convicted of first degree murder will be imprisoned for life without parole or put to death. First, after a sentencing hearing, the jury must tell the judge whether it has unanimously found at least one statutory aggravating circumstance. This unanimous decision is required for a death sentence. Next, the jury decides whether it recommends that the aggravating circumstances outweigh the mitigating circumstances, justifying a sentence of death. That weighing recommendation need not be unanimous.

Finally, the judge independently decides whether the aggravating circumstances outweigh the mitigating circumstances, giving the jury recommendation whatever weight he or she deems appropriate. Upon a judge’s finding that the aggravating circumstances outweigh the mitigating circumstances, the defendant is sentenced to death.

Under longstanding Delaware criminal law, the jury must unanimously find every element of the crime beyond a reasonable doubt. Yet the Delaware Supreme Court has ruled several times that the current death penalty statute is constitutional even though it requires that the judge, not the jury, make the finding necessary for a death sentence.

Hurst v. Florida ruled the Florida statute unconstitutional because it required the judge to “determine whether sufficient aggravating circumstances existed to justify imposing the death penalty.” The Supreme Court did not limit its ruling to only a statute like Florida’s, which required the judge to decide whether there was any aggravating circumstance. Instead, the Court expanded the impact of its ruling. It overruled older cases that had said “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” That and the result in Hurst imperil the validity of the Delaware statute. Because Delaware law must be consistent with controlling U.S. Supreme Court precedent, the courts will very likely to be asked to follow Hurst v. Florida, and rule that Delaware’s statute is unconstitutional.

But there is no reason to wait for another court decision and then have a legislative battle over whether Delaware should once again try to enact a constitutional death penalty statute. It is time, in the words of U.S. Supreme Court Justice Harry Blackmun, for our state to “no longer tinker with the machinery of death.” A bill to end Delaware’s death penalty has passed the State Senate twice and has been bottled up in a House of Representatives committee during the past two legislative sessions. That bill, Senate Bill 40, should be brought to a vote in the House, so that if a majority of Representatives also agree, Delaware can be done once and for all with trying to figure out if there is a constitutional way to put its citizens to death.

Richard Morse is the legal director of the ACLU of Delaware.