DOVER — The state has responded in the ongoing judicial review of the death penalty, arguing the statute does not violate the U.S. Constitution.

In January, Superior Court Judge Paul Wallace requested the Delaware Supreme Court weigh in on five questions centering on the current death penalty laws. The inquiry followed a federal decision that Florida’s capital punishment system is unconstitutional. Both Delaware and Florida allow a judge to weigh aggravating and mitigating factors in sentencing death for convicted murderers, and Florida’s statute was found to violate the Sixth Amendment, which guarantees a jury trial.

Repeal advocates have attempted to abolish capital punishment in the General Assembly, with a bill passing the Senate last year before failing in the House of Representatives in January. Gov. Jack Markell, a Democrat, spoke out in support of repeal last year.

In the opening brief submitted to the Supreme Court at the end of February, the Public Defender’s Office argued the U.S. Supreme Court’s recent finding “clearly illustrates that the Delaware capital sentencing statute, which requires a judge to make findings regarding aggravating and mitigating circumstances — and their relative weight — before a death sentence may be imposed, violates the United States Constitution.”

Multiple organizations, including the American Civil Liberties Union of Delaware, have presented legal arguments supporting the position taken by the Public Defender’s Office.

The Department of Justice took a different approach in an answering brief filed Wednesday evening.

Contrary to the Public Defender’s Office, the agency said Delaware still gives considerable power to a jury.

“The role of a Delaware capital jury is not so limited,” argues the brief, written by Chief of Appeals Elizabeth McFarlan and Deputy Attorneys General John Williams and Sean Lugg. “First, a Delaware capital jury must find the existence of at least one statutory aggravating factor unanimously and beyond a reasonable doubt before the sentencing court may consider imposing a sentence of death upon a convicted murderer. Second, a Delaware capital jury, in addition to assessing and voting upon submitted statutory aggravators, may consider both non-statutory aggravators and mitigators in making its recommendation to the sentencing judge.”

There are 22 aggravating factors set forth in the Delaware Code, including whether the victim was at least 62 years old, whether the homicide “was committed against a person who was held or otherwise detained as a shield or hostage” and whether the crime was murder for hire.

Mitigating circumstances can include impairment and the defendant’s background.

“The difficulty with the Florida statutes was that a trial judge alone could find a fact leading to the eligibility of a murderer for a death sentence, even if a jury had not made such a fact-finding,” the Justice Department wrote. “In contrast, Delaware’s death penalty procedure mandates that the jury find a statutory aggravating factor to ‘unlock’ the death penalty. Thereafter, the sentencing judge may independently assess the evidence to find an aggravating circumstance not previously found by the penalty phase jury.

“Just as in any sentencing decision, the judge is free to consider all information presented in aggravation and mitigation to determine the appropriate sentence for that particular defendant in light of his or her personal traits and the circumstances surrounding the offense. In Delaware, the jury provides another piece to that information, providing the vote regarding the individual conclusions of each juror as to whether the aggravating circumstances outweigh the mitigating circumstances. Using that information in conjunction with the presentations made during the penalty hearing, the judge then determines the appropriate sentence.”

Delaware mandates a recommendation of death and mitigating factors determined by a jury be unanimous.

The two briefs also differ on whether the death penalty statue as a whole can be separated from the provision in question.

The Public Defender’s Office said the court should strike down the entire provision, writing, “Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts.”

The Justice Department argued the portion can be severed if need be, noting sections of the state’s capital punishment law previously have been removed after federal court decisions.

Chief Public Defender Brendan O’Neill said his office intends to file a response by April 18.

“We will restate our legal position and we will counter the arguments tendered by the Department of Justice,” he said.

After that is submitted, the Supreme Court will either make a decision based on the evidence submitted or schedule oral arguments.