Criminal justice bills moving through as session winds down

Heading into the last week of the 2019 legislative session, a package of criminal justice bills announced in April is poised for action.

In announcing the bills, officials said they are aimed at helping adults and youth, who are adjudicated or incarcerated, to move past their criminal record and to ensure judges have discretion to make the best sentencing decisions for each individual – instead of applying a mandatory one-size-fits-all standard to all offenders.

Speaking to a Lewes group in May, Attorney General Kathleen Jennings said the most important was House Bill 5, which would reform concurrent and consecutive sentencing by allowing judges the discretion to sentence prison time concurrently when appropriate.

“This is the one we've got to get done,” she said. “I know judges who have left Superior Court because they felt like they have no say.”

The bill, with an amendment clarifying the crimes for which a judge can use personal judgement, passed the House June 11 by a 30-10 vote with one absent. It now awaits action in the Senate Judicial Committee.

One bill not included in the April package has major implications for drug charges.

House Bill 4, known as the James Johnson Sentencing Reform Act, would reclassify most drug crimes now designated as violent felonies under Title 16 in Delaware Code. These charges include manufacture, delivery and possession of controlled and noncontrolled substances; trafficking marijuana, cocaine, illegal drugs, methamphetamine, LSD, and designer drugs or MDMA; and lower-level drug dealing.

Under the bill, only the highest level of drug dealing would remain a violent felony. “Those offenders are most likely high-quantity drug dealers or those at the top of a distribution pyramid,” the bill states.

The bill would expand the ability to modify sentences for conditional release based on the rehabilitation of the offender, serious medical illness or infirmity, or prison overcrowding.

The bill would also repeal law that created the Sentencing Accountability Commission and replace it with the Sentencing Accountability and Guidelines Commission.

The bill was introduced June 10 and reported out of the House Administration Committee June 12. It awaits action in the House.

House action

On June 19, four juvenile justice bills cleared the House Judiciary Committee and await action in the full House. Senate Bill 44 originally decriminalized possession or consumption of alcohol by an individual under 21 years old, making it a civil offense. The bill also would prohibit including information concerning a civil violation of the underage possession or consumption law on an individual’s certified criminal record. The Senate unanimously passed the original bill May 16, however, an amendment was placed with the bill June 19 by Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach, which would increase the charge to criminal after the second offense. If passed as amended by the House, the amended bill would require Senate approval.

Other bills that moved through committee June 19 and await action in the House are:

• House Substitute 1 for House Bill 10, which would prohibit the prosecution of any child under the age of 12 and bar transferring a juvenile prosecution to the Superior Court unless the child is aged 16 or older, with the exception of first- and second-degree murder and rape

• House Substitute 1 for House Bill 75 which would clarify that any child under 18 years old who is adjudicated in Superior Court will serve the initial portion of their incarceration until age 18 in the custody of the Department of Services for Children, Youth and their Families;

• House Bill 76 which would require the Department of Services for Children, Youth and Their Families to have exclusive jurisdiction over all aspects of a child’s care, custody and control when a child is convicted of a Superior Court offense.

• A bill that modifies licensing for electricians, making it easier for those with past convictions, cleared the House Sunset Committee.

Other bills that await House action are: House Bill 77 that would simplify code by combining burglary and home invasion and align minimum mandatory sentencing; and House Bill 78 that would do the same for robbery and carjacking.

Senate action

A bill that would make possession or private use or consumption of a personal-use quantity of marijuana a civil offense for an individual who is under 21 years of age for the first and second offense awaits action by the full Senate June 20. An amendment placed with the bill makes a third offense an unclassified misdemeanor – a criminal offense.

The Senate already passed the following bills which await action in the House:

• Senate Substitute 1 for Senate Bill 37 unanimously passed the Senate April 17. The bill expands arrests and convictions that qualify for expungement from an adult criminal record.

• Senate Bill 41 passed the Senate June 18 by a 19-2 vote. The bill would determine the jurisdiction for a young person facing charges at the time of an offense, not arrest.

• Unanimously passing the Senate on May 16, Senate Bill 47 would simplify Delaware's drug code by removing certain enhancements that increase penalties for crimes committed in areas such as schools. Drug dealing, however, would retain higher felony-level charges.

In the Senate Judicial Committee is Senate Bill 39, which would prohibit a court from suspending a driver’s license for nonpayment of a fine, fee, cost, assessment, or restitution. It also would prohibit a court from imposing an additional fee on a defendant for payments that are made at designated periodic intervals or late, or when probation is ordered to supervise a defendant’s payment.

The 150th General Assembly will recess after June 30, but reconvene in January 2020. Bills that have not been passed by the end of session this year will still be active for consideration in 2020.