Have We Witnessed the De Facto Repeal of the Death Penalty in Delaware? Yes. Maybe.

Filed in Delaware by on February 2, 2016

Hear me out. This is exciting.

As you may be aware, a hold has been placed on all death penalty cases in Delaware by the Delaware Supreme Court.

The reason? The U. S. Supreme Court deemed unconstitutional part of a Florida statute that grants exclusively to judges the right to determine a sentence of death in capital cases.

Guess what? Delaware has the exact same provision in its statute.  The irony is that it didn’t used to be that way.  No, AG Jane Brady, Sen. Tom Sharp, Sen. Jim Vaughn and others demagogued the sheep in Dover into taking the power away from juries and giving it to judges.  Why? ‘Coddling criminals’, blah blah blah. How great would it be if they ended up sowing the seeds for death penalty repeal?

I’m not a lawyer, but I don’t see how Delaware’s statute can be constitutional if Florida’s is not.

Here’s where it gets interesting.  Only the Delaware General Assembly can change the statute.  Even if the bill is not a super-majority bill (lawyers, help me out), this means a majority of members of both the House and Senate have to approve it and it has to be signed by the Governor.  Here’s the delicious catch:  A majority of the Delaware State Senate has voted for death penalty repeal.  By not voting affirmatively to transfer sentencing authority from the judge to the jury, those same senators who support death penalty repeal will have effectively repealed the death penalty in Delaware. At least until/unless the U. S. Supreme Court revisits its decision.

Can somebody prove me wrong?  I await the response of experts. Me? I’m psyched!


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  1. Dorian Gray says:

    Also odd is that unlike Florida the judicial authority to overrule a jury and hand down a death sentence has never been used in DE so far as I know. So they fought to give judges the authority and no judge has used it. Unless I’m mistaken…

    This entire thing is a long, drawn-out political-judicial kabuki dance akin to the marriage equality thing and marijuana legalization also. Incremental changes, state court decisions on this or that portion of a statute, appeals, carving out new segments to chip away (i.e. civil unions, medical marijuana), etc., etc.

    It’s only a matter of time. Arcs toward justice and all that. A decade from now we’ll find it all quite strange.

  2. There is also a question of who will actually push for legislation to transfer sentencing authority from the judge to the jury. Won’t be Markell, he’s publicly opposed to the death penalty. Likely won’t be Denn, I doubt that he’s a death penalty obsessive, and it can go away w/o him getting into a big battle with the cops.

    And, when you think about it, it’s a pretty convenient solution for the legislators as well. They don’t really have to deal with the issue any more. It just…goes away.

  3. Jason330 says:

    Who? Governor Lacey Lafferty, that’s who.

  4. Dorian Gray says:

    Eventually some state supreme court somewhere will rule on some mundane, esoteric detail of juripudence, like say jury instruction, or the lethal injection procedure, and that’ll de facto end this madness.

    The old death by a thousand cuts deal. No fanfare. 10 years out I’d guess.

  5. Except in Delaware it might have already happened. Like you said, with no fanfare.

  6. mediawatch says:

    … until a policeman gets killed, and there’s a big hue and cry that the shooter can’t be executed …
    Meanwhile, maybe some retired state cop in the GA will introduce a resolution to impeach Judge Jurden.