Lawmakers in Dover said Tuesday that they were working to codify new internal policies at the Department of Justice, which aim to move Delaware toward a more “fair and equal” criminal justice system by prioritizing the prosecution of violent crimes over low-level, nonviolent offenses.
The new orders, outlined Monday in a seven-page memo by state Attorney General Kathy Jennings, instruct prosecutors to limit the the number of charges brought in indictments, consider alternatives to jail in fashioning plea agreements and expand expungements for marijuana possession or arrests for other offenses that are no longer crimes.
The goal of “presumptive guidelines,” Jennings said, was to provide rehabilitation and “second chances” to first-time offenders, while freeing up resources to combat “serious and violent crime.”
“We are continuing to work on other initiatives outside of our office, but our internal reforms are an important step forward in a long journey toward the model of justice that the people of this state expect of us, and that we expect of ourselves,” Jennings said in a statement.
But while the memo provides ”general direction and guidance” to prosecutors, it does not establish a legal right for a defendant to have the policies enforced in court. Nor does it guarantee that they would continue to be enforced under the administration of a different AG.
Lawmakers, meanwhile, were looking to make the changes permanent, as the General Assembly continues to enact a slate of criminal justice reforms this year, including a top-down rewrite of the state’s criminal code.
“I think the next steps are to codify as much as can be codified,” state Sen. Bryan Townsend, D-Newark, said of the policies.
Townsend said that Jennings had been engaged in discussions with members of the General Assembly, who were drafting legislation and planned to start introducing bills as soon as next month.
“I think there’s a tremendous amount of goodwill right now to figure out how and what to codify,” he said.
In the memo, Jennings said her DOJ would adopt an “office-wide presumption” not to charge multiple minimum mandatory crimes when just one would account for the facts of a specific offense. Plea agreements, she said, would take into account the need for drug and mental health treatments, and consider whether a defendant is a candidate for residential treatment, instead of prison.
For sentences up to 12 months, deputies would ask for probation or home confinement, and the state prosecutor would have to authorize prison sentences of more than 20 years in cases not involving murder, manslaughter, sex offenses and child abuse.
“These proposals will greatly increase fairness for those who come in contact with the justice system. It shows an understanding that there’s no one-size-fits-all approach when it comes to justice, and that ensuring public safety doesn’t mean we lock up every person who faces or is convicted of charges,” said Rep. Sean Lynn, D-Dover, who chairs the House Judiciary Committee.
State Sen. Colin Bonini, R-Dover South, said he supported measures for expanding expungements and pardons, but he criticized other policies that he said would inevitably lead to more crime, with offenders being released back into the community.
“This is continuing the trend [in Delaware] of not holding people accountable for criminal activity,” he said. “I think it’s a mistake, and our constituents are going to pay for it.”
Despite his opposition, Bonini acknowledged that there were likely enough votes in the General Assembly to pass the forthcoming legislation.
“I just hope we have this debate,” he said. “My hope is we’re going to have a very public discussion.”
Attorneys at the Office of the Public Defender have long opposed the ability of prosecutors to “stack” multiple mandatory minimum charges in cases involving the same underlying conduct, arguing that the practice pressures defendants into taking stiff plea deals, rather than challenge the charges in court.
On Tuesday, Chief Defender Brendan O’Neill said he hoped the new policies would lead to meaningful change within criminal justice system and better outcomes for defendants.
“This is a very positive development and a good step forward. The question is going to be, when the rubber hits the road, are they going to be implemented and followed by the deputies,” he said.
“The men and women of the Office of Defense Services look forward to working with the DOJ to implement these policies.”