Delaware DOJ Will Argue State Court Decision Is Not Retroactive.
After carefully reviewing the Delaware Supreme Court’s opinion regarding the constitutionality of Delaware’s current death penalty statute, the Attorney General has decided not to appeal the decision to the United States Supreme Court. He has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, that the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware. The Delaware Supreme Court has repeatedly stated that the Delaware Constitution provides rights to a jury trial that are independent of and in some instances more expansive than those provided by the Sixth Amendment to the United States Constitution. Litigating and appealing these issues – a process that would likely take years before issues of both federal and state constitutional law were resolved — would likely not only bring about the same result, but would also deny the families of victims sentencing finality.
While the application of the Delaware Supreme Court’s opinion to sentences already imposed will undoubtedly be litigated in Delaware courts, the Delaware Department of Justice does not believe that the Delaware Supreme Court’s opinion applies retroactively.
The Attorney General has stated repeatedly over the past two years that he would support an amendment – which would require passage by the General Assembly and approval of the Governor – to Delaware’s death penalty statute that would require a unanimous jury verdict in order to impose a death sentence, and he stands by that position.