lady, justice, liberty

Delaware could be heading into a pivotal year for criminal justice reform in 2018, as lawmakers are expected to weigh a series of controversial proposals and voters will be asked to elect the state’s next chief law enforcement official.

Perhaps most immediately, the state Senate could be faced with a consequential vote on a bill to reinstate the death penalty, after the state Supreme Court in 2016 found the law to be unconstitutional. But the lawmakers in both chambers may later be called on to consider significant changes to Delaware’s bail system and a top-down rewrite of Delaware’s Criminal Code after an influential committee proposed sweeping changes in March.

All three efforts have gained momentum in recent years, but the high-profile killing of a Delaware State Police trooper and the deadly Feb. 1 takeover of James T. Vaughn Correctional Center has renewed concerns among some that such measures are too soft on crime and send the wrong message to criminals.

The first test could come in the form of HB 125, which purports to fix constitutional flaws in the old death penalty statute, which gave judges, and not juries, too much discretion in sentencing. Dubbed the Extreme Crimes Protection Act, the bill aims to remedy the statute by requiring that a unanimous jury find, beyond a reasonable doubt, that the aggravating circumstances of a crime weigh in favor of death.

The legislation cleared the House in May on a 24-16 vote but never came to the floor in the Senate, where lawmakers in 2016 passed a bill to repeal the death penalty by just a single vote. The bill is currently assigned to the five-member Judicial & Community Affairs Committee, chaired by Senate Majority Leader Margaret Rose Henry.

It is not clear yet when or if the bill could come to a vote before the full Senate, though lawmakers may consider the bill as early as January, when they are scheduled to return to Legislative Hall.

Democrats still maintain a one-seat majority in the Senate after winning a special election to replace Bethany Hall-Long, who was elected lieutenant governor. Republicans have traditionally been significantly more supportive of capital punishment than Democrats; however, party affiliation does not guarantee lawmakers’ views on an issue that has split members of both political camps.

Legislators in Dover consistently cite the death penalty as one of the most emotional and divisive issues that they have had to handle in Dover, and last year’s separate killings of a state trooper Sgt. Rodney Bond Jr. and correction officer Lt. Steven Floyd Sr. have stoked the passion of death penalty supporters who want to see the law put back on the books.

Thomas S. Neuberger, a Republican attorney who is seriously considering a run to succeed Democrat Matt Denn as attorney general, has said he supports restoring the death penalty in first-degree murder cases involving law enforcement officers, correction employees and other victims killed while performing their official duties.

And on Dec. 19, he released a press statement to “demand” that the prospective field of Democratic candidates announce a position on HB 125.

Tim Mullaney Sr., a Democrat and the only candidate to officially announce his campaign, has said he would support reinstatement if the General Assembly passes the legislation. But Mullaney, who has served as a U.S. marshal and chief of staff at the Delaware Department of Justice, could face a challenge from younger progressives within his party who are strongly opposed to capital punishment.

Former attorney general and U.S. Attorney Charles M. Oberly III and Kathy Jennings, who was a top prosecutor at the DOJ, are both rumored to be interested in the job. But neither has made a formal announcement or staked out a public position on the death penalty.

State Rep. Sean Lynn, D-Dover, who has also floated the idea of running for attorney general, has made his opposition to the death penalty one of his defining characteristics during his time in Dover. In October, he told Delaware Law Weekly that as attorney general he would institute a policy directing the DOJ not to seek the death penalty, even if the legislature reinstate capital punishment this session. Lynn has not yet confirmed whether he will launch an official campaign.

But he has said that any potential platform would emphasize juvenile and criminal justice reform, and he committed to working with state Supreme Court Chief Justice Leo E. Strine Jr. on a top-to-bottom rewrite to Delaware’s Criminal Code.

The Criminal Justice Improvement Committee, which includes Strine and other stakeholders in the criminal justice system, has proposed streamlining Delaware’s approximately 200 felonies and misdemeanors from outside Title 11 into one document that would theoretically be easier for police and the public to understand.

The rewrite would also reduce prosecutors’ ability to “stack” multiple charges for the same crime, and it would seek to eliminate minimum mandatory sentences except for violent crimes, sex offenses and weapons charges.

The committee has also separately proposed broad changes to the state’s bail system, which would allow more defendants to be released before trial without posting bail, as long as they don’t pose a threat to public safety.

Both reform efforts, though, could take years to enact. Any forthcoming legislation would need to pass through the General Assembly, and there is little indication of how much support they would garner among lawmakers.

Denn, who will serve as attorney general until January 2019, has so far refused to participate in the Criminal Code rewrite, but the process figures to fit prominently into the race for the post that will be responsible for carrying out the policy.

Democrats, who have held the Attorney General’s Office since 2005, are favored to win next November. However, Republicans see an opportunity in the statewide election, especially if there is a Democratic primary between younger progressives and establishment favorites.

The state Republican Party has formed a committee of lawyers from all three counties to vet attorneys who have expressed interest in the post. The selection committee is expected to announce its preferred candidate in early 2018.

While Republican leaders are hoping to avoid a primary battle, there is nothing to prevent a challenger from competing for the party’s official endorsement at the state GOP convention next summer.

The statewide primary is set for Sept. 11, 2018, and the general election is scheduled for Nov. 6. Candidates must file with the Delaware Department of Elections by July 10.