|Delaware's death chamber|
Court to hear arguments over whether a ruling to end the death penalty should be applied to those still on death row.
Even though Delaware Supreme Court found the state's death penalty law unconstitutional in August, the debate over whether 12 men on death row should still be executed will heat up next week when arguments make it to a courtroom.
The court will have to decide whether its landmark ruling, which barred death sentences unless Delaware law is rewritten to comply with the U.S. Constitution, should be applied retroactively to those already on death row.
The top court is poised to hear arguments Dec. 7 in Dover from state prosecutors and attorneys representing Derrick Powell, a 29-year-old sentenced to death for the fatal shooting of Georgetown police officer Chad Spicer.
"The issue becomes, will the court apply the Constitution to everybody or invoke a procedural technicality to arbitrarily apply the decision to some but not others?" said Robert Dunham, executive director of the nonprofit Death Penalty Information Center.
Prosecutors will urge the five justices to not apply the court decision to the men on death row because of a long-standing rule against doing so after a criminal case is completed. Powell's attorneys will argue it would be draconian to execute him after the court already deemed the sentencing scheme unconstitutional.
The issue first arose when the U.S. Supreme Court in January struck down Florida's death penalty law saying it violated the U.S. Constitution by giving judges, and not juries, the final say to impose a death sentence.
Alabama and Delaware were the only other states that, like Florida, allowed judges to override a jury's recommendation of life.
In light of the U.S. Supreme Court decision, the state Supreme Court found that Delaware's capital punishment law was also unconstitutional.
The court, however, did not say in August whether its decision would apply to those on death row, leaving open the possibility of further litigation. Powell's case will be the test.
Powell is Delaware's youngest inmate on death row.
In September 2009, he and two men arranged to rob another man during a marijuana deal. The robbery attempt went awry, and Powell fired at the fleeing man in the parking lot of a Georgetown McDonald's, according to court documents.
The incident led to a police chase that ended when Powell fired a shot at a police car, fatally wounding the 29-year-old officer and father, court documents said.
Powell was found guilty of first-degree murder and other charges in February 2011. He was sentenced to death in May of that year.
When his case is heard by the Delaware Supreme Court next week, his attorneys, Patrick Collins and Natalie Woloshin, will argue that it would be "unjust" to execute Powell just because he had the misfortune of being sentenced to death before the Florida decision.
"This court should recognize that truth, and give meaning to the venerates phrase, 'death is different,' and vacate his sentence," his attorneys wrote in an argument filed with the court.
Chief of Appeals Elizabeth McFarlan and Deputy Attorney General John Williams argued in their own written brief that the court should use a U.S. Supreme Court case known as Teague v. Lane to determine that it is not appropriate to apply a new decision to closed cases.
Delaware has not wavered from the Teague rule against retroactivity for 26 years and should not start to now, they wrote.
"When criminal convictions are subject to later review because of subsequent legal changes, additional burdens are placed upon the state criminal justice system," they wrote. "This court recognized the burden of repeated review not just of convictions but also of sentences, in determining the retroactivity of a recent legislative change to permit concurrent sentencing under certain circumstances."
Powell's attorneys, however, said executing their client would be unfair and unjust. They pointed to other states, such as New York, Maryland and Connecticut, that had retroactively applied the decision to eliminate the death penalty to those already sentenced to death.
"In Delaware, as elsewhere, whether the abolition has come from the executive, legislative or judicial branch, the result has been the same: the existing death sentences have been vacated," they said. "Those decisions comport with a recognition of the awesome finality of death as a sentence and recognize that death is truly different. To do otherwise would be grossly irreconcilable with the norm, and moreover, would be repugnant to our status as an enlightened society."
Amicus briefs in support of Powell's position have been filed by several others, including an attorney for death row inmate Luis G. Cabrera, the Atlantic Center for Capital Representation, the American Civil Liberties Union of Delaware, and the Office of the Federal Public Defender for the District of Delaware, which represents in some capacity 8 of the 12 individuals currently on death row.
Dunham said, if the court were to apply the decision retroactively, they could do so in a variety of ways. The court could apply its decision to all the cases pending on appeal since January, apply the decision to all the cases pending on appeal since a similar 2002 court decision, or they could apply the decision to all cases, regardless of the time frame or whether an appeal is pending.
"The obvious problem is that if you don't apply it to everybody, you are tolerating unconstitutional executions," he said. "The flip side is if you apply it retroactively, Delaware does not have any mechanism on the books to do resentencing hearings."
Source: Delaware Online, Jessica Masulli Reyes, November 30, 2016
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