Attorney General Jennings Unveils Internal Reform Measures for Criminal Prosecution

Prosecutors encouraged to divert more low-level offenders to treatment, ask for low end of sentencing, support commutations and expungements

Citing incarceration and recidivism rates that outstrip the national average, an unprecedented opioid epidemic, and a groundswell of public support for reform, Attorney General Kathy Jennings announced Monday morning more than 30 internal protocols and positions for the Department of Justice’s handling of issues from charging and sentencing to probation, bail, and expungements.

A memo to DOJ prosecutors and staff outlines a comprehensive body of presumptive guidelines that emphasize judicial discretion, increase diversion for lower-level offenses, reduce collateral consequences associated with criminal records, and guide an overall shift in focus toward more violent crime.

Attorney General Jennings said internal reform is only the first step of many toward a more fair and equal criminal justice system. The Attorney General said she will work with legislators, community advocates and law enforcement on a number of changes to state criminal code this year that will also lead to better outcomes than current laws.

“We don’t have to choose between public safety and progress; we can and must choose both,” said Attorney General Jennings. “These policies reaffirm the Department of Justice’s longstanding mission to protect the rights of all Delawareans: victims, the public, and the accused. Our decisions substantially impact peoples’ lives and livelihoods, their families, and the community’s faith in the system. 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.”

Delaware has made significant progress reducing its prison population and pretrial detainee population (down 11 percent and 33 percent, respectively, from 2014 to 2018). However, room for improvement still remains: according to the Sentencing Project, Delaware’s incarceration rate in 2016 ranked 16th among all states and was among the highest in the region. The state also has a high rate of recidivism: figures from the Criminal Justice Council show a three-year re-arrest rate of 72.8 percent.

Governor John Carney, who recently announced an initiative to improve re-entry procedures in Delaware, praised the announcement.

“We have a responsibility to make sure Delaware’s criminal justice system is fair to all Delawareans,” said Governor Carney. “We’ve been focused on helping all offenders in Delaware successfully re-enter their communities once they have served their time. These policy changes at the Department of Justice represent another real step forward, by ensuring that our resources are focused on prosecuting crimes that represent the greatest threat to our communities. I want to thank Attorney General Kathy Jennings for her leadership on this issue, and for all of her efforts to make Delaware’s criminal justice system more fair for all Delawareans.”

Key provisions of the memo include:

  • Support for pretrial practices that deemphasize cash bail for routine misdemeanors
  • Guidance to avoid unjust “stacking” of minimum mandatory sentences and to reduce requests for the Courts to declare a defendant a habitual offender in order to increase sentences, especially with non-violent crimes
  • Policies that aim to address the opioid epidemic by relying on mental health and drug treatment needs before prison sentences
  • Emphasis on diversion and alternatives to prosecution for several categories of low-level offenses, including simple possession of marijuana and prostitution
  • Consideration of alternatives to prison that limit collateral consequences while accounting for public safety, such as house arrest
  • Emphasis on judicial discretion in sentencing, shorter sentencing recommendations, probation in lieu of some prison sentences, and recommending judges limit probation to one year in most scenarios
  • Opposition to the issuance of warrants and driving license revocation for failure to pay fines and fees when the accused is without the ability to pay
  • Consideration of collateral consequences for undocumented victims and witnesses
  • Juvenile justice provisions that encourage extended Family Court jurisdiction and discourage trying children as adults except when necessary
  • Support for expungements for crimes that are now legal, and for nonviolent charges in which a nolle prosequi (a decision not to pursue charges) has been entered on the basis of insufficient evidence
  • Support for pardons for isolated, non-violent crimes when the applicant has demonstrated sufficient rehabilitation

All of Attorney General Jennings’ internal changes are presumptive guidelines; prosecutors will be able to seek exceptions to policies when individual cases’ facts and circumstances warrant the deviation.

Delaware Center for Justice Policy Director Kate Parker said the announcement made important progress on fairness in the criminal justice system.

“The Delaware Center for Justice applauds Attorney General Jennings, State Prosecutor Roop and their leadership team for promulgating guidelines that we believe will transform the quality of justice for Delawareans involved with the criminal legal system,” said Parker. “These guidelines push us towards a safer, fairer, more effective legal system one where the race and gender of the defendant or victim or the amount of money they have in their pockets will no longer predict court outcomes.”

New Castle County Chief of Police Col. Vaughn Bond praised the Attorney General’s attention to mental health and addiction issues in particular.

“I look forward to working with the Attorney General to not only focus on criminal activity, but also on treating individuals who are suffering from addiction and mental illness, many of whom comprise a significant portion of our incarcerated population,” said Col. Bond.

Read the memo concerning the policy change here.


Governor Carney Signs Rep. J. Johnson Bill to Reduce Aesthetics Licensing Barriers

Measure helps improve job opportunities for those with criminal histories

DOVER, Del. – Governor John Carney signed legislation Thursday that would help improve employment and training opportunities for Delawareans with criminal histories seeking cosmetology and barbering licensure.

Sponsored by Rep. J.J. Johnson, House Bill 97 removes licensing roadblocks so a criminal history will not stand in the way of an individual pursuing and applying for an aesthetics license to practice cosmetology, barbering, electrology or nail technology.

“Delawareans who have served their time deserve a second chance, an opportunity to contribute, and reach their full potential,” said Governor Carney. “This legislation will help those with criminal histories improve their lives, while strengthening our communities. Thank you to Representative Johnson and Senator Henry for their leadership on this issue.”

Championed by Rep. Johnson, the legislation gives the Board of Cosmetology and Barbering discretion to grant waivers for certain felony convictions when assessing licensure applicants if up to three years have elapsed since their sentence. Previously, the waiting period was five years.

“After an individual has paid his or her debt to society, all they want is to be able to begin to rebuild their lives. Stable employment and training opportunities are critical to that rehabilitation,” said Representative Johnson, who chairs the House Corrections Committee. “This legislation removes barriers so that individuals will not be defined by their past and will be able to pursue licensing opportunities to put them on a sustainable path forward.”

Under the bill, the board is also precluded from taking into account an applicant’s criminal conviction if more than 10 years have passed since the date of the sentence and there have been no other convictions during that time.

“We spend a lot of time in Dover making sure that the state government isn’t placing overly burdensome or harmful regulations on our economy or our neighborhoods. Shouldn’t we do the same to help former inmates contribute to both?” said Senate Majority Leader Margaret Rose Henry, D-Wilmington. “Ex-offenders already face a steep climb upon release, and failure often means returning to prison, so I couldn’t be more proud to join my friend Rep. Johnson in opening up an avenue to self-sustainability and success for these Delawareans.”

“Professional licensure is often a gateway to a new life for Delawareans looking to launch new careers, earn more for their families and contribute to their communities,” said David Mangler, director of the Division of Professional Regulation. “We are proud to be a part of Rep. Johnson’s efforts to break down barriers to licensure and broaden opportunities for people across the state.”

For questions about licensing, contact the Division of Professional Regulation at customerservice.dpr@delaware.gov or 302-744-4500. Visit the division’s website www.dpr.delaware.gov for more information.

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Delaware to Participate in National Criminal Justice Reform Project

Efforts will focus on reducing recidivism, improving substance abuse & mental health treatment for offenders

WILMINGTON, Del. – Governor John Carney announced on Monday that Delaware has been selected to participate in the National Criminal Justice Reform Project – an initiative led by the National Governors Association and the National Criminal Justice Association Center for Justice Planning to assist states in implementing evidence-based criminal justice reforms.

Governor Carney’s office, the Delaware Criminal Justice Council, and a newly-created Criminal Justice Reform Committee will lead Delaware’s work with the national project.

Reform efforts will focus on two specific areas:

  • Improving the reentry process for offenders in Delaware’s correctional system, and reducing recidivism;
  • And improving access to mental health and substance abuse treatment for offenders in Delaware’s criminal justice system.

“We all have a stake in making sure that, once offenders serve out their sentences in Delaware’s correctional system, they are able to successfully reenter their communities and positively contribute,” said Governor Carney. “This work will not only help offenders successfully transition back into society, but will improve public safety, more effectively coordinate treatment services, and reduce costs for Delaware taxpayers.”

Earlier this month, Delaware and Vermont joined Illinois, Arizona and Oregon as states participating in the National Criminal Justice Reform Project. The project assists participating states in using data to plan and implement evidence-based criminal justice reforms.

Delaware continues to experience high rates of incarceration and recidivism, which come at a high cost for Delaware taxpayers. The average cost of incarcerating one prisoner each year is $35,000 – or 20 times the cost of probation.

Additionally, 24 percent of Delaware’s offender population was receiving some form of mental health treatment in 2015, and 80 percent of the offender population experienced issues with substance abuse.

Challenges with substance abuse and mental health can prevent offenders from successfully reentering their communities. The Delaware Criminal Justice Reform Committee will focus on more effectively coordinating treatment services.

“The Delaware Criminal Justice Council is excited to work with Governor Carney and the Criminal Justice Reform Committee to build on the continuing work of improving reentry services to all offenders and providing treatment to those in our system with mental health challenges,” said Christian Kervick, Executive Director of the Criminal Justice Council. “This is a great opportunity to work with experts and implement national best practices to improve our Criminal Justice System.”

The Delaware Criminal Justice Reform Committee will begin meeting next month. The committee will use technical assistance from the National Criminal Justice Reform Project to improve collaboration between various state agencies working on reentry issues and community groups, and to improve data collection. Its members also will focus on strengthening and streamlining strategic planning processes around criminal justice reform.

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The Criminal Justice Reform Committee will include representatives from:

  • Law Enforcement
  • Delaware Department of Justice
  • Delaware Courts
  • Office of Defense Services
  • Department of Labor
  • Department of Health and Social Services
  • Department of Services for Children, Youth & Families
  • Department of Safety and Homeland Security
  • Department of Correction
  • Department of Education
  • Research Partners from the University of Delaware
  • Statistical Analysis Center
  • Community Members
  • Local Govt. Representatives
  • Delaware Center for Justice


Attorney General Proposes Changes to State’s Drug Laws and Elimination of Loophole for Illegal Gun Possession

Drug law proposals would simplify drug laws, eliminate geographic inequities, and increase focus on treatment; Firearm proposal would ensure that all violent felons illegally carrying guns face jail time.

Attorney General Matt Denn speaks at the Osher Lifelong Learning Institute at the University of Delaware
Attorney General Matt Denn speaks at the Osher Lifelong Learning Institute at the University of Delaware

Attorney General Matt Denn announced today that he would be asking the newly elected General Assembly to reform the state’s drug laws, and eliminate a dangerous loophole in the state’s illegal gun possession statute.

Attorney General Denn stated that the state’s drug laws — as currently written — are overly complicated, contain provisions that expose residents of urban areas to greater penalties than those who live in rural and suburban areas, and do not focus sufficient resources on treatment of inmates and defendants with substance abuse problems.

Attorney General Denn outlined his proposals in remarks made today at the University of Delaware’s Osher Institute of Lifelong Learning. With respect to his proposals regarding reform of the state’s drug statute, he suggested that his office work with legislators, law enforcement officials, representatives of the criminal justice system, substance abuse experts, and victim advocates to create a specific reform proposal for the General Assembly to consider early in its upcoming session.

In his remarks, Attorney General Denn noted that Delaware’s existing drug laws:

• Are unnecessarily complicated and cumbersome for law enforcement officers, attorneys, and judges to apply;

• Contain sentencing enhancements that are based entirely upon where crimes are committed, which effectively expose people living in urban areas of the state to more severe criminal penalties than those living in suburban and rural areas;

• Contain other sentencing enhancements that do not appear logical, such as imposing harsher sentences for drug crimes that involve the use of a car;

• Do not focus sufficient resources on drug treatment for inmates and defendants who participate in ‘diversion’ programs to avoid incarceration

Attorney General Denn emphasized that changes to the drug statute should ensure that the intent of sentencing enhancements designed to protect children is preserved, and specifically suggested that in place of the statute’s current focus on the geographic location of offenses for purposes of sentencing, the sale of drugs by an adult to a child should result in a mandatory sentence.

“It is time for us to revise our criminal drug laws,” the Attorney General said, “to make them more simple, more fair, and more logical, and to ensure more substance abuse treatment for inmates and people who go through diversion courts.”

Attorney General Denn also renewed his call for the legislature to eliminate a loophole in the state’s illegal gun possession statute. Currently, individuals who are barred by virtue of a violent felony conviction from possessing a firearm, but defy that ban and are in possession of a gun, face a minimum mandatory jail sentence ranging from three to ten years. However, young adults who are barred from possessing guns due to a juvenile violent felony adjudication, and who defy that ban, face no mandatory jail sentence at all.

Attorney General Denn illustrated his point with a description of the case of an offender he referred to as “Ron” who was adjudicated of multiple violent felonies as a juvenile and therefore prohibited from having a gun before he was 25, but then found with one at age 21.

“If he had gotten any of those prior violent felony adjudications as an adult rather than as a juvenile and then pled guilty to this new gun charge, his sentence would have been an automatic five years in jail,” Attorney General Denn said. “But under the criminal code as it is currently written, violent felonies committed as juveniles are written out of this mandatory sentencing provision, so Ron got no new jail time at all. The judge let him out to work release after time served – the time he had spent in prison awaiting trial.”

Attorney General Denn reiterated his position that young adults with violent felony records as juveniles must be deterred from illegally carrying guns, and indicated that he would once again ask the legislature to require a minimum jail sentence for young adults who defy this gun prohibition.


Markell Signs Mandatory Sentencing Reform into Law

Enacts initiative proposed in Governor’s State of the State Address

Wilmington, DE – Governor Markell has signed legislation into law that enacts a proposal from his State of the State address to reform Delaware’s habitual offender law, eliminating mandatory life sentences for drug offenders and providing judges with more discretion for sentencing non-violent offenders. Senate Bill 163 was championed by State Senator Karen Peterson and received bi-partisan support when approved recently by the General Assembly.

“The trend of stiffer mandatory sentences for an increasing number of crimes hasn’t worked,” said Markell. “I’m proud to sign into law this common-sense reform that provides new opportunities for those who don’t pose a threat to public safety to return to their families and contribute to our society, while ensuring dangerous offenders are appropriately sentenced to long prison terms. Thanks to Senator Peterson’s leadership and the strong support of Attorney General Denn and others, we’ll be in a better position to make smart, informed decisions on using our correctional resources effectively to keep our communities safe and strong.”

The bill, which is in line with a proposal from the Governor’s State of the State address, is part of an effort to reduce the prison population, and it follows last week’s enactment of legislation restoring voting rights to individuals who have completed their sentences to empower them to become full, productive members of their communities.

As the Governor noted in his State of the State, criminal behavior peaks when defendants are in their early 20s and releasing even one long-term inmate who no longer poses a threat to public safety would free up as much bed space as releasing dozens of short term detainees.

The Markell Administration’s criminal justice reforms have powered a nearly three-fold increase in the number of defendants in community-based pre-trial supervision, reduced the detention population by 18%, and increased reentry programs that are aimed at reducing recidivism. Click here to learn more about efforts to adopt a smarter, more effective criminal justice system.

“It’s time to end the insanity of imposing draconian, ‘one-size-fits-all’ sentences on people who are not a danger to society,” said Sen. Karen Peterson, the prime sponsor of the legislation and a long-standing advocate of criminal justice reform. “This bill is a step in that direction.”

“Delaware’s ‘three strikes’ law is an outdated policy that has led to overflowing prisons, but has done little to reduce crime or make our communities safer,” said Rep. James “J.J.” Johnson, the bill’s lead House sponsor. “There are criminals who should be imprisoned, but using a one-size-fits-all approach benefits no one in the long run. We should trust our judicial system to make the appropriate determination for each offender.”

“This legislation is designed to address some irrational and disproportionate minimum mandatory jail sentences – such as one that provides the same minimum mandatory sentence for someone who burglarizes a house as for someone who commits murder – while still allowing judges the discretion to provide longer sentences when they deem necessary,” said Attorney General Matt Denn. “It is a meaningful step in reforming one aspect of the criminal justice system that disproportionately punished non-violent offenders while preserving public safety and continuing long prison sentences for those who deserve them.”

“We commend Governor Markell and the General Assembly for taking a step toward restoring sentencing discretion to our Superior Court judges. This legislation eliminates the harsh and excessive habitual offender sentences in certain nonviolent cases,” said Chief Defender Brendan O’Neill. “Our judicial system should be about fairness and rehabilitation. This legislation is a good start in ensuring that Delaware stays true to that mission.”

Highlights of Senate Bill 163:

• Makes changes to the existing habitual criminal statute by focusing penalties on violent crimes against persons and property, eliminating a mandatory minimum sentence of life imprisonment that can currently be imposed solely for drug crimes, and providing a mechanism for those convicted under existing law to petition the court for a sentence modification;

• Provides for enhanced penalties for habitual criminals convicted of multiple felonies and distinguishes between violent crimes against persons and property and other felonies;

• Provides an opportunity for those who were convicted under the existing law to petition for a sentence modification once the person has served any applicable minimum mandatory sentence. Such petitions for sentence modifications will be subject to procedures set forth in the statute and to court rules.