Public Defender’s Office: Delaware death penalty law is unconstitutional

DOVER — The debate over the constitutionality of the state’s death penalty laws continued Monday with the Public Defender’s Office responding to the Department of Justice.

Delaware’s capital punishment statute is under review by the state Supreme Court after a federal court decision invalidated part of Florida’s death penalty laws.

Florida allows the judge to sentence death, and the U.S. Supreme Court ruled a jury must hold the responsibility for determining aggravating factors.

Delaware’s law is somewhat similar to Florida’s. In light of the federal decision the Delaware Supreme Court is examining the issue. The Public Defender’s Office filed an initial brief and the Department of Justice has replied.

Future capital cases are on hold while the court analyzes the constitutionality.

This third brief marks the last step before a decision, which can come based on the briefs or from oral arguments in front of the justices. In such a monumental case, it is likely the Supreme Court would schedule arguments rather than rule based on the submitted materials.

Calling the flaws in the law “fatal,” the Public Defender’s brief is critical of the state’s submission and argues the current Delaware provision violates the right to a trial by jury.

“Here, the jury’s verdict, standing alone, permits only one penalty: life in prison,” it says. “To impose a sentence of death, additional findings of fact are required and these findings, under the statute, are made by a judge and not the jury. The defendant cannot receive the increased punishment of death until the court makes additional findings not made by the jury. This violates the Sixth Amendment.”

The submitted text seeks to rebut the state’s claims, and it says aggravating factors must be found by a unanimous jury.

Citing the Delaware Code, the filing also disputes the Justice Department’s arguments that even if this portion of the statute is unconstitutional, the Delaware death penalty as a whole is not.

“Without subsection (d)(1), which requires the judge to find the facts necessary to impose death, the statute is not ‘capable of being given effect alone as an enforceable concept’ because there would be no statutory procedures in place to impose the death penalty,” the Public Defender’s brief states.

Should the Supreme Court rule not only that the language in question is invalid but that the statute cannot be separated from the death penalty law as a whole, capital punishment in the state would be at least temporarily struck down.

Responsibility would fall to the General Assembly to craft a new law, and there may be enough death-penalty opponents in the two chambers dominated by Democrats to block an attempt to overhaul the law.

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