Jessica Masulli Reyes

The News Journal

The Delaware Supreme Court has ruled the state's death penalty law is unconstitutional – and the only chance at fixing it is to punt the issue to the already-divided General Assembly.

The top court released its ruling Tuesday that said Delaware's current capital punishment statute violates the U.S. Constitution by giving judges, and not juries, the final say to impose a death sentence.

Supporters of capital punishment will now want the General Assembly to fix the statute's language so the practice can continue. That could be tough since a vocal opposition helped a bill to abolish the death penalty pass the state Senate in 2015, before it failed in a close vote in the House this year.

The House sponsor of that legislation, Rep. Sean Lynn, D-Dover, had the option to bring up the bill for another vote, but postponed action to await the Delaware Supreme Court ruling. He said he will review the decision to determine what, if any, action should be taken.

"Our end goal is to ensure that no death sentences are handed down in the future, and if the Supreme Court's decision accomplishes that, then that is an important consideration," he said.

Gov. Jack Markell said he hoped the ruling will mean the state will never see another death sentence.

“I applaud the Supreme Court’s finding that the state’s death penalty law is unconstitutional," Markell said in a statement. "As I have come to see after careful consideration, the use of capital punishment is an instrument of imperfect justice that doesn’t make us any safer."

Tuesday's landmark ruling stemmed from the U.S. Supreme Court's decision to strike down Florida's death penalty sentencing scheme. That ruling in January left judges, attorneys and defendants in Delaware and Alabama – the only two other states that, like Florida, allow judges to override a jury's recommendation of life – questioning the impact of the court's decision.

The Delaware Supreme Court responded by agreeing to consider five questions of law that had arisen from the Florida ruling. In the meantime, the president judge temporarily halted all pending capital murder trials until the issue was resolved.

Now, in light of Tuesday's decision, Santino Ceccotti, a lawyer for the Delaware public defender, said the pending cases will no longer be tried as capital punishment cases. This includes the court's test case of Benjamin G. Rauf, accused of killing his 27-year-old friend Shazim Uppal.

It remains unclear, however, what will happen to the 13 men already on death row, since the court opinion did not address whether the decision should be applied retroactively. The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection.

"That is something that will be addressed in due time," Ceccotti said. "But, we know that all of the cases pending in the Superior Court after this decision was rendered are no longer going to be charged as capital cases."

The Delaware Department of Justice can appeal the Supreme Court's ruling. A spokeswoman for the DOJ said only that the decision is still being reviewed.

The 148-page ruling showed a clear split between the state's five justices. Justice Karen Valihura concurred in part and dissented in part, while Justice James T. Vaughn Jr. dissented outright from the rest of the bench.

Writing for the majority, Chief Justice Leo E. Strine Jr. said that Delaware's current law violates the Sixth Amendment requiring a jury to unanimously and independently make factual findings before sentencing a defendant to death.

Previously, a jury had to unanimously agree the evidence showed beyond a reasonable doubt a person found guilty of first-degree murder fit at least one of 22 statutory aggravating factors.

Then, each juror has to decide whether the aggravating factors outweighed the mitigating factors. That decision did not need to be unanimous, and the judge was not bound by the findings. Thus, the judge had the final authority in sentencing someone to death.

“Our statute cannot stand," Strine wrote. "And to put my opinion in more basic terms, I embrace the notion that the Sixth Amendment right to a jury extends to all phases of a death penalty case, and specifically to the ultimate sentencing determination of whether a defendant should live or die."

"Although states may give judges a role in tempering the harshness of a jury or in ensuring proportionality, they may not execute a defendant unless a jury has unanimously recommended that the defendant should suffer that fate," he added.

Strine wrote that this upholds a historic tradition of juries being the only ones who can send a defendant to the "gallows."

"The jury's historical role as an important safeguard against overreaching in the most critical of contexts was recognized at the founding, and prevails in most states today, making our own state one of thew few outliers," he said.

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Vaughn said he was not persuaded. He said while Florida and Delaware's statutes are similar, they are fundamentally different.

“I am satisfied that Delaware’s death penalty statute complies with the Sixth Amendment as the law on that amendment is currently interpreted by the U.S. Supreme Court," he wrote.

State prosecutors have argued Florida's death penalty process looks similar to an older version of Delaware's statute that existed before the General Assembly in 2002 changed it in response to another court ruling. The Florida ruling was an attempt to get Florida in line with the prior decision.

The court, however, sided with public defenders, who argued Delaware's statute fell victim to the same infirmities as Florida's.

Ceccotti, who argued on behalf of the public defenders, said he was happy with the result Tuesday.

"Obviously, the court embraced the arguments that we advanced, and I think this is the pulse of how the jurisprudence is heading regarding capital sentencing," he said. "Delaware decided to take the next step, rather than take a step backward."

Others agreed, including Kathleen MacRae, executive director of the ACLU of Delaware.

"As of today, Delaware no longer has a death penalty," she said. "We join the ranks of 19 other states in the United States without capital punishment. We call on all Delawareans to honor this ruling by our highest court and oppose any effort by the General Assembly to 'fix' our death penalty statute."

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @jessicamasulli.