Legislators are proposing changes to Delaware law that would require a jury to unanimously agree before a person is sentenced to death.
Under the Extreme Crimes Protection Act, a jury – not a judge – would decide whether a defendant is sentenced to death.
In August, Delaware Supreme Court ruled Delaware's death penalty law violates a person's constitutional right to a jury as outlined in the U.S. Constitution's Sixth amendment by allowing a judge to decide whether a defendant receives a death sentence. Since then, Delaware's death penalty has been on hold, and sentences for 12 men on death row were reduced to life in prison.
The proposed amendments would require that a jury unanimously find that an aggravating factor or factors exist making a person eligible for a death sentence, and that those factors outweigh all mitigating factors. As written now, a jury recommends to a judge whether aggravating factors exceed mitigating factors. The jury's decision does not have to be unanimous.
Current law gives a judge the final say on the death sentence. A judge may sentence a defendant to death even if a jury is not unanimous on a death sentence or recommends life in prison.
The proposed legislation ends a judge's ability to issue a death penalty against a jury's decision. However, it allows a judge to give a lesser sentence even if a jury votes for a death sentence, said Rep. Steve Smyk, R-Milton, a prime sponsor of the bill.
“The judge can dial it down, but if a jury says life in prison, that's the system. That's what we go by, and we should accept that,” Smyk said.
As another protection for a defendant in a death penalty case, the proposed legislation would allow a jury to consider mitigating factors presented by the defense, even if they have not been proven beyond a reasonable doubt.
Still, Kathleen MacRea, executive director of the American Civil Liberties Union of Delaware, said her group will not support the Extreme Crimes Protection Act or the changes it espouses.
“The death penalty is not a deterrent to crime. It doesn't keep people safe. From a policy perspective, it risks convicting innocent people,” she said.
The ACLU was a strong proponent of legislation proposed in 2015 to repeal Delaware's death penalty. That legislation had the support of then-Gov. Jack Markell and dozens of lawmakers, but the bill failed in a January 2016 vote. It has not been reintroduced.
MacRea said the ACLU intends to rally similar opposition against the Extreme Crimes Protection Act.
“We'll definitely testify against it,” she said. “The bottom line is the death penalty system is a biased system.”
Smyk said he expected groups opposed to the death penalty to be against any measure that could bring back the death penalty. However, he said, there has been a slight shift in favor of it since the Feb. 1 prison siege at James T. Vaughn Correctional Center in Smyrna.
“I don't support a death penalty, but I support the victims of crime,” Smyk said. “Without a death penalty, you'll unleash more people of the caliber that took the life of Steven Floyd. And that's a reality.”
Sen. Ernie Lopez, R-Lewes, said he continues to support repealing the death penalty, but he would consider the statute changes and give the bill a thorough review.
“I'm still in support of the repeal. But if there is any piece of legislation that brings greater clarity to the code, I've typically been in support of it as long as it's balanced and fair,” Lopez said. “I will definitely keep an open mind.”
Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach, did not return calls for comment.
“It has to be a united effort,” Smyk said. “Many people are going to have to talk about it to get it done right.”
The bill continues to be circulated for more sponsors at Legislative Hall, and it is expected to be filed next week.