State weighs bills to revamp criminal system

A sweeping package of criminal justice reform bills announced March 14 aims to change certain criminal charges, sentencing and fines in an effort to reduce jail time for nonviolent offenders.

Attorney General Kathleen Jennings and Democratic leaders from the House and Senate unveiled 18 bills and one proposed bill that would revamp Delaware's criminal system for adults and juveniles. “If enacted, these bills would represent the boldest package of criminal justice reforms in modern Delaware history,” Jennings said during a press conference held in Dover.

But not everyone is on board.

Jennings said the Department of Justice, state legislators and the Office of Defense Service worked together on the bills with support from the American Civil Liberties Union of Delaware and the Coalition for Smart Justice, but no one from the law enforcement community attended the bill unveiling, most notably Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth, a former troop commander with the Delaware State Police. Schwartzkopf said he was at physical therapy following knee surgery when the press conference was held, but he echoed many concerns over proposed reforms that members of the law enforcement community hold.

“You can't take on something this big and not have concerns,” Schwartzkopf said. “A lot of concerns can be dealt with by sitting down and explaining the bills.”

Jeff Horvath, former Lewes police chief and now executive director of Delaware Police Chiefs Council, said there was little communication before the bills were announced. “I found out about the press conference the day of it,” he said. “It would have been nice to have a seat at the table.”

Horvath said he has met with members of the Delaware State Troopers Association and the state chapter of the Fraternal Order of Police about the lack of law enforcement input. Thomas Brackin, president of the DSTA and Fred Calhoun, president of the state FOP, could not be reached for comment.

Geoff Klopp, president of the Correction Officer's Association of Delaware, also met with the law enforcement groups, and he shares their concerns. “We would've liked to have been consulted before the bills were announced,” he said.

Although it appears some of the bills would free up space within a prison system that for years has been underfunded and understaffed, Klopp said, public safety is still the No. 1 concern. “It's not about freeing up space and letting criminals free,” he said. “Our job is to keep people safe.”

In February, Jennings announced a series of policy changes at the Attorney General's Office intended to keep nonviolent offenders out of jail. No one from the Delaware State Police – Delaware's largest police organization – attended the February announcement. When asked whether DSP had offered an opinion on the policy changes, Carl Kanefsky, spokesman for the Attorney General's Office said, “The Attorney General has shared the memo and the reasoning behind it with multiple law enforcement agency heads and personnel, but we would not want to characterize their reactions.”

Policy changes included reducing bail amounts and no longer charging a dependant with multiple minimum-mandatory crimes when one crime suffices. Police officers, however, do not always consult with the Attorney General's Office before filing charges in a criminal case. “There is no written or legal rule on which cases, though it tends to be on more serious or complex cases, almost always sex crime and always with homicides,” Kanefsky said.

On the criminal justice reform bills recently released, Schwartzkopf said meetings are planned between legislative leaders and law enforcement. “Some of the leadership may not have been involved as much as they should be, but there was some communication with law enforcement,” Schwartzkopf said.

Moving forward, communication is key, and the future of the bills depends on whether law enforcement will be involved, said Rep. Steve Smyk, R-Milton, a former Delaware State Police officer who also served as president of the Delaware State Troopers Association. “Those who know the system don't have a voice anymore,” he said. “They're not being spoken to; they're not being invited to the table, and it's sad.”

Violent vs. nonviolent offenders

Schwartzkopf said much of law enforcement concern revolves around perceived leniency for violent offenders. “I do have some heartburn with proposals when it comes to changing code for violent offenders,” he said.

Changing sentencing from consecutive terms to concurrent and reducing factors that can increase penalties, such as for crimes involving a weapon, are problematic, Schwartzkopf said. “When you start lessening the crimes when it comes to guns, you're talking to someone who ended up looking down the wrong end of a gun, and ask them how they feel about it,” he said.

Delaware should take a tough-on-crime stance, Smyk said. “Minimal mandatories are not the answer to everything, but they are certainly a deterrent,” he said.

Although many of the bills differentiate between violent offenders charged with murder or rape and lesser offenders, Smyk said, stricter sentencing, including factors known as enhancements that make charges more severe, are needed to deter overall crime, such as carrying a firearm while drug dealing. “There's a constitutional protection for firearms, but not for when you're using a firearm during a crime. Why are we reducing that? Why are we ignoring the compounding of crimes that incorporate firearms?” Smyk said.

He bristles at the characterization that drug use is a nonviolent crime because, he said, drug use brings violence and other crime. “I love the way they say drug offenders are not violent offenders,” he said. “Just because it's a drug charge doesn't mean it's not related to crime and nonviolent.”

Simple drug possession is still a crime in Delaware, just like driving 80 mph on the highway, Smyk said. Intoxicants do not help society or the working class, he said. Instead they erode our standard of living. Those on probation must follow court rules prohibiting them from personal use of drugs or other substances, or risk going back to jail, he said. “When a judge says do not commit any crimes when you're on probation, he means it,” Smyk said. “In order to help the defendant be a better person, that personal use of marijuana is still a larger danger than what we are allowing to be recognized by the majority.”

Smyk said years of criminal justice reform have not stopped people from doing crimes. As the state population increases, he said, so will the prison population. Without funding for prison programs that will change criminal behavior, he said, bills that eliminate certification barriers for convicted electricians, plumbers, massage therapists and tattoo artists will do little for post-prison employment.

“They are assuming that people are going to leave prison and say 'You know what, I want to be an electrician, but I can't get a license',” Smyk said. “Just because they go to prison doesn't mean they're going to get out and get a job.”

Smyk said he also doubts a bill that keeps people who can't pay a fine out of jail will make a difference since courts currently offer payment plans as low as $10 a month. “I'd like to know how many people go to jail because they are unable to pay a fine versus how many people refuse to pay a fine,” he said.

Using Wilmington as an example, Smyk said, a tolerant attitude on drug use, drug dealing and crime has given Delaware's largest city one of the highest crime cities in the country. “Let's see when the rest of Delaware becomes like Wilmington. Let's see what they have for solutions then,” he said. “Tolerance of crime will make the state look just like Wilmington, and I fear for the safety of my children.”

So far, Schwartzkopf said, he knows of only three bills circulated throughout the General Assembly for legislators to sponsor. During the press conference, criminal justice reform proponents said they anticipated introducing most bills by the end of March. House Majority Leader Rep. Valerie Longhurst, D-Bear, declined to comment at this time. Spokesman for the House Democrats, Drew Volturo said legislative personnel discussed the proposals with representatives from FOP, DSTA and the police chiefs for feedback. “Those discussions have taken place before the proposals were formally announced, and have been ongoing since that announcement. Legislative personnel will continue to solicit input and take it into consideration throughout the entire legislative process, which is the normal, everyday procedure for any piece of legislation,” he said.

Attorney General's Office spokesman Kanefsky also said meetings have been held with law enforcement groups and will continue to be held. Jennings could not be reached for comment for this story. Instead, Kanefsky referred to a comment she made when the legislative initiative was announced March 14.

“We are announcing bills and concepts of bills today. But I will be the first to say that this is only the beginning of our conversation about these bills. We are open to discussion, and I know the legislators who have worked very hard on these bills are open to discussion, among the many stakeholders who will be affected by the legislation. There is a legislative process that will allow more voices to be heard and adjustments to be made,” Jennings said.

Still, questions with the reforms remain among members of the law enforcement community. “We have people who are trying to address some problems in the criminal justice system, but yet many of them have never been a victim of crime,” Schwartzkopf said.

Proposed criminal justice reform bills

Sentencing

House Bill 5 would reform concurrent and consecutive sentencing by allowing judges the discretion to sentence prison time concurrently when appropriate. The bill would mandate consecutive sentences when there are multiple victims of serious crimes and for assault in a detention facility.

Employment

House Bill 6 would modify the impact of criminal history on an applicant's eligibility for licensure by the Board of Plumbing, Heating, Ventilation, Air Conditioning and Refrigeration Examiners.

House Bill 7 would do the same for a former inmate seeking a license from the Board of Massage and Bodywork.

Senate Bill 43 pertains to a license given by the Board of Electrical Examiners.

House Bill 8 would establish an Ex-Offender Employment Opportunity Tax Credit which offers a tax credit to employers who hire qualified ex-offenders. The tax credit would equal 10 percent of the employee's wages for a maximum of $1,500.

Police training

House Bill 9 would mandate two hours annually for wellness and resiliency training for police officers to mitigate job-related trauma.

Expungement, reduced fines

Senate Bill 37 would expand arrests and convictions that qualify for expungement from an adult criminal record.

Senate Bill 39 would prohibit a court from suspending a driver's license for nonpayment of a fine, fee, restitution or other costs. It would also prohibit a court from imposing an additional fee on a defendant for late payments, payments made at designated intervals or when probation is ordered to supervise a defendant's payment.

Criminal code changes

Senate Bill 47 would simplify Delaware's drug code by removing certain enhancements that increase penalties for crimes committed in areas such as a school. However, the bill would retain higher felony-level charges for drug dealing.

House Bill 77 would simplify the burglary code by combining burglary and home invasion. It would remove minimum-mandatory sentences for prior convictions allowing a judge to determine penalties during sentencing.

House Bill 78 would combine robbery and carjacking while recognizing the seriousness of carjacking.

Juvenile justice reform

House Bill 10 would prohibit the prosecution of any child under the age of 12 and bar transferring a juvenile trial to Superior Court unless the child is 16 or older or is charged with first- or second-degree murder or rape.

House Bill 75 would mandate that children who is adjudicated in Superior Court will remain in the custody of the Department of Services for Children, Youth and their Families until they are 18.

Senate Bill 41 would determine the jurisdiction for a young person facing charges at the time of an offense, not arrest.

House Bill 76 would require the DSCYF 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.

Senate Bill 44 would make clear that underage drinking is a civil offense. It also would prohibit including information concerning a civil violation of the underage drinking on an individual’s certified criminal record.

Senate Bill 45 would make the possession, use, or consumption of a personal use quantity of marijuana a civil violation for juveniles.

In the works is a measure by Lynn to prevent the release of a juvenile’s information, such as their name and mug shot, may be released by the state. It also would address issues related to the release of such information on state-maintained social media pages and web sites.