"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Saturday, January 16, 2016

Will the Supreme Court ruling on Florida's death penalty affect Delaware?

A U.S. Supreme Court decision striking down part of Florida's death penalty system will not immediately impact cases in Delaware, but could pave the way for future legal challenges in both states, experts say.

On Tuesday, the Supreme Court ruled 8-1 that Florida's procedure for death sentences is unconstitutional because it gives too much power to judges - and not enough to juries.

Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life, and, instead, impose a sentence of death. However, judges in Delaware have not been using that power.

For that reason, the U.S. Supreme Court ruling is not expected to impact the 14 people currently on death row in Delaware, according to Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington, D.C.

Local attorneys are still reviewing the decision - and are waiting to see what the impact will be on Delaware's death penalty statute.

The Department of Justice issued a statement saying the opinion is still under review. Brendan O'Neill, the state's chief defender, said the court opinion could restrict the application of the death penalty in Delaware.

"It's my opinion that it really casts doubt on the validity of Delaware's death penalty scheme," he said.

The ruling comes at a time when Delaware's death penalty statute is being scrutinized.

Lawmakers attempted to repeal Delaware's death penalty in May, but were blocked in a 6-5 vote by a crucial House committee for the 2nd time in 2 years. Gov. Jack Markell has said he would sign a repeal bill if it made its way to his desk.

Juries that are not in agreement

The Supreme Court ruling Tuesday is part of a larger trend of the courts trying to eliminate death penalty practices in states that deviate from the norm. The most obvious deviation that will have to be considered in the future is the practice of allowing juries that are not unanimous to recommend death sentences, Dunham said.

If the Supreme Court were to consider that narrow issue, it could affect Delaware, he said.

"Almost the entire country rejects the practice of non-unanimous juries, except in Delaware, Alabama and Florida," he said. "Delaware's practice of permitting non-unanimous jury recommendations will remain in the spotlight, and it is very likely there will be constitutional challenges."

Kristin Froehlich, of Delaware Citizens Opposed to the Death Penalty, agreed that legal challenges could be coming.

"I definitely think [Tuesday's decision] will make everyone take a look at Delaware's death penalty law," she said. "I would rather have Delaware as a state make the choice to get rid of the death penalty, instead, of waiting for the Supreme Court to do that for us."

A Harvard Law School study found that requiring juries to be unanimous in Florida, Alabama and Delaware would have caused a drop in death sentences over the last 5 years. The 3 states would have returned 26 death sentences since 2010, instead of 117, according to the Death Penalty Information Center.

Had these states followed the sentencing system used by all other death penalty states, the total number of death sentences imposed in the United States would have decreased by 21 %.

The process of sentencing someone to death in Delaware requires three steps.

Once a person is found guilty of 1st-degree murder, the jury must unanimously agree that the evidence shows beyond a reasonable doubt that at least 1 of 22 statutory aggravating factors has been met. Factors can include that the victim was an on-duty law enforcement officer, pregnant, severely handicapped, over age 62, under age 14, or was killed to prevent he or she from testifying in court.

Finally, each juror has to decide whether the aggravating factors outweigh the mitigating factors. That decision does not need to be unanimous, and the judge is not bound by those findings and can reach a different conclusion.

For example, in the case of Derek Powell, the man accused of killing a Georgetown police officer, the jury found two statutory aggravators beyond a reasonable doubt. On the 2nd issue, the jury found 7-5 that the aggravating factors outweighed the mitigating factors, and recommended Powell be sentenced to death.

The judge evaluated the evidence and sentenced Powell to death. Powell is currently Delaware's youngest death row inmate.

The Pensacola murder

The Supreme Court opinion for Florida did not consider the issue of unanimous juries - only the issue of judge's having the final say for death sentences.

The opinion in Florida stemmed from the case of Timothy Lee Hurst, who was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola. A jury was divided 7-5 in favor of death, and a judge imposed a death sentence.

Florida's solicitor general argued that the system was acceptable because a jury first decides if the defendant is eligible for the death penalty.

Writing for the court, Justice Sonia Sotomayor said a jury's "mere recommendation is not enough."

"The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death," Sotomayor said.

The justices sent the case back to the Florida Supreme Court to determine whether the error in sentencing Hurst was harmless, or whether he should get a new sentencing hearing.

Justice Samuel Alito dissented, saying that the trial judge in Florida simply performs a reviewing function that duplicates what the jury has done.

Sotomayor said Florida's system is flawed because it allows a sentencing judge to find aggravating factors "independent of a jury's fact-finding."

Three of Florida's current death row inmates were sentenced over the jury's life recommendation. But no judge had overridden a jury recommendation in a death penalty case since 1999, according to state officials.

Froehlich said Delaware's death penalty statute, which is similar to Florida, needs to be examined.

"In Delaware, people say we have such a strong law, it will prevent errors, but in fact, we have one of the broadest death penalty statutes," she said. "We have the highest number of aggravating factors; we don't require unanimous juries; and we have the judge override. It really is ripe for error."

Source: The News Journal, January 15, 2016

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