AG won't appeal Del. death penalty ruling, still plans 13 executions
GOP lawmakers plan to introduce legislation to revise death penalty law
Strine, Jr., listen to oral arguments over the death penalty on June 15. Attorney General Matt Denn will not appeal a the court ruling that found the state's death penalty law unconstitutional.(Photo: JASON MINTO/THE NEWS JOURNAL)Buy Photo
Even though Attorney General Matt Denn will not appeal a Delaware Supreme Court ruling that found the state's death penalty law unconstitutional, he still plans to push for the 13 men currently on death row to be executed.
Denn, a Democrat, announced his decision Monday afternoon, setting the stage for two fierce battles – one in Delaware's legal system and the other in the state Legislature.
In the courts, defense attorneys and prosecutors will make life-or-death arguments in the coming year over whether the invalidation of the state's capital punishment law should be applied retroactively to defendants sentenced to death.
Meanwhile, Republican lawmakers have already vowed to try to rework the current law so the punishment can be reinstated during the next session of the General Assembly. But other legislators and activists who previously pushed to repeal the death penalty will fight any of their efforts.
The recent flurry of activity around the state's death penalty stems from a U.S. Supreme Court decision in January to strike down Florida's law because it gave judges, and not juries, the final say to impose a death sentence.
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 agreed to weigh in on the issue. And, did so, on Aug. 2 when it ruled that Delaware's law is also unconstitutional.
Denn's office could have appealed to a higher court, but on Monday, he said he would not.
"After carefully reviewing the Delaware Supreme Court’s opinion regarding the constitutionality of Delaware’s current death penalty statute, the Attorney General has decided not to appeal the decision to the United States Supreme Court," a statement from his office said.
The statement said that Denn concluded that even if the U.S. Supreme Court reversed the opinion on federal constitutional grounds, the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on Delaware's constitution.
"The Delaware Supreme Court has repeatedly stated that the Delaware Constitution provides rights to a jury trial that are independent of and in some instances more expansive than those provided by the Sixth Amendment to the United States Constitution," the statement said.
Kathleen MacRae, executive director of the ACLU of Delaware, said Denn’s decision was smart because the U.S. Supreme Court was unlikely to even hear the case, let alone override the state court.
The Delaware Supreme Court ruled the state's death penalty law is unconstitutional. The top court said the capital punishment statute violates the U.S. Constitution by giving judges, and not juries, the final say to impose a death sentence. Daniel Sato/The News Journal
Denn's office added that appealing and litigating the issues of both federal and state constitutional law would drag on for years and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality."
Denn will, however, support the General Assembly and governor taking action to change the current law to require unanimous jury verdicts for death sentences.
Rep. Jeff Spiegelman, R-Clayton, was one of 15 Republicans in the General Assembly who signed a letter saying they would support reinstating the death penalty like Denn wants.
He says there is recent precedent for a legislature attempting to do so: after Florida’s death penalty law was struck down on similar grounds as Delaware’s, the legislature there passed a legislative “fix” aimed at addressing the court’s concerns.
The new law has also been challenged in court.
If the current General Assembly were to vote on a bill, Spiegelman says a fight to reinstate the death penalty would come down to the wire. A bill to repeal the death penalty narrowly passed the Senate but failed in the House.
“If this was a non-election year, I would say I was very confident it would get through the House, but the question is, is there a Senator over there who would switch from repeal to reinstate based on a legal argument,” Spiegelman said. “I think that might be possible. But it’s much, much harder to predict anything since this is an election year.
Spiegelman said he thinks some voters will go the polls with candidates’ stances on the death penalty in mind.
“My constituents are pretty clear,” he said. “I have some who oppose the death penalty, but the majority of my constituents are in favor of the death penalty.”
Sen. Margaret Rose Henry, D-Wilmington East, said she not only does not want to see a bill re-instating the death penalty pass, she hopes to pass legislation formally abolishing the law the court ruled unconstitutional.
"I hope there are enough good-thinking people who would stave off any attempts to bring the death penalty back," Henry said. "What the courts did was go in the right direction. I hope we can use that to repeal the death penalty, period."
Henry said she's confident that the Senate would not approve legislation reinstating the death penalty unless it changes dramatically. But voters could change things, even if they don't give Republicans a majority in the Senate — Henry points out that votes out that the issue does not follow partisan lines.
"We'll have to wait and see," she said.
Despite this political wrangling over the issue, state prosecutors will likely fight in the coming years to ensure the court's opinion applies retroactively to the inmates currently on death row.
Brendan O'Neill, chief of the public defender's office, said his office will seek the opposite.
"With respect to retroactivity, that will be for the courts to decide," he said. "But our view is it should be applied retroactively and the mere timing of these events should not result in some people being executed while others are not."
The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection.
MacRae also said Denn’s claim that the decision did not apply retroactively will need to be hashed out in the courts.
“The AG has his opinion, but I have heard other lawyers, both in my office and not in my office, say that because the men on death row were sentenced under an unconstitutional statute that the statute doesn’t apply,” MacRae said.