Delaware

Delaware

Experience Shows No “Parade of Horribles” Following Abolition of the Death Penalty

States that have recently abolished the death penalty have not experienced the “parade of horribles”—including increased murder rates—predicted by death-penalty proponent, according to death-penalty experts who participated in a panel discussion at the 2017 American Bar Association national meeting in New York City. Instead, the panelists said, abolition appears to have created opportunities to move forward with other broader criminal justice reforms. The transcript of that panel presentation, Life After the Death Penalty: Implications for Retentionist States, which was posted by the ABA on January 3, features discussion of the political factors that contributed to repeal and research into the effects of death-penalty abolition in those states in which repeal has recently occurred. The panel discussion, jointly hosted by the American Bar Association Section of Civil Rights and Social Justice and the New York City Bar Association in August 2017, featured four speakers with backgrounds in death-penalty activism, reform, or research: Thomas P. Sullivan, Co-Chair of the 2000 Commission on Capital Punishment in Illinois; Shari Silberstein, Executive Director of Equal Justice USA; Celeste Fitzgerald,& former Director of New Jerseyans for Alternatives to the Death Penalty; and Robert Dunham, Executive Director of the Death Penalty Information Center. The first three speakers described the circumstances that led to abolition in the six states that legislatively repealed or judicially abolished capital punishment between 2007 and 2014 and explained how abolition sponsors overcame opponents' arguments that, as Fitgerald characterized it, “abolition would bring about a 'parade of horribles.'” Silberstein summarized those worries, saying, “The death penalty proponents' arguments were all the traditional ones you would expect. They talked about the bloodbath that would come if there were no death penalty: murders would spike; the killings of police officers would spike; killings of corrections officers would spike.” Dunham discussed DPIC's research on three decades of murder rates in the U.S., which, he said, shows that abolition of the death penalty had no discernible effect on murder rates in general or murder rates of police and corrections officers killed in the line of duty. Dunham said that if the arguments advanced by death-penalty proponents were factually supported, murder rates in general and the rates at which police and corrections officers were killed should have risen after states abolished the death penalty, both in those states and in comparison to trends in other states. And, Dunham said, “if—as opponents of death-penalty abolition had argued—police officers were especially vulnerable without the death penalty and its repeal would lead to 'open season on police officers,' you'd expect to see not just an increase in the rate at which police officers were killed, but an increase in the number of murders of police officers as a percentage of all homicides.” None of this happened, he said. Instead, murders of law enforcement officers were much lower in the states that recently abolished the death penalty. “[T]he death penalty appears to make no measurable contribution to police safety,” Dunham said. The panelists also observed that repeal of capital punishment had created an opportunity for additional criminal justice reform. Sullivan noted that, prior to repeal, “[a] great deal of time, attention, and effort were spent on the few cases that involved the death penalty in Illinois, while little attention was given to the huge number of people who were convicted and incarcerated for crimes. All that time, attention, and money can now be shifted to reforming the entire Illinois criminal justice system. That would mean that there has been a double benefit from having abolished the death penalty in Illinois.” Silberstein said that in New York, abolition permitted “stakeholders who could not talk to each other in the same way when the death penalty was on the table because [of] differences over the death penalty” to discuss “how best to achieve the key goals of safety and healing [and] work on increasing funding and programs to reduce violence.”

New Podcast: DPIC Interviews Death-Row Exoneree Isaiah McCoy

Saying "I’m young, I have a lot of energy, and I’m up to the task of fighting for the rights of others,” death-row exoneree Isaiah McCoy (pictured, center) and his attorneys spoke with DPIC about his wrongful conviction, his exoneration, and his future. Just weeks after his January 19, 2017 exoneration from Delaware's death row, McCoy and lawyers Michael Wiseman and Herbert Mondros (pictured with McCoy) spoke with Robin Konrad, DPIC's Director of Research and Special Projects as part of the Discussions with DPIC podcast series. McCoy's case featured several systemic problems that plague the death penalty system: a lack of physical evidence, eyewitnesses who received deals from the prosecutor and told multiple versions of the story about the crime, a non-unanimous jury recommendation for a death sentence, and a prosecutor whose misconduct in the case was so outrageous that he was suspended from practicing law. McCoy—the nation's 157th death row exoneree—and his attorneys explain how these factors contributed to his wrongful conviction, discuss his efforts to be exonerated, and describe McCoy's life since exoneration. In January 2015, the Delaware Supreme Court granted McCoy a new trial as a result of "pervasive prosecutorial misconduct that permeated" his trial. In the podcast, McCoy shares his views on reforms that could help prevent future wrongful convictions. "A lot of these prosecutors, they've built a culture at their offices where they don't care whether a person is guilty or innocent. Their only goal is to win by any means necessary," McCoy says. "So, I think that's something we must change, in order for the scales of justice to be even." He advises others facing wrongful convictions to educate themselves about the legal system, reach out to organizations for help, and "be steadfast." He said that he plans to use his experiences to protest mass incarceration and assist others who have been wrongfully convicted.

Isaiah McCoy Exonerated from Delaware Death Row, the 157th Death Row Exoneration Since 1973

Isaiah McCoy (pictured), a former Delaware death row inmate, was exonerated on January 19, 2017, when a judge acquitted him at a retrial. He is the 157th person exonerated from death row in the United States, the first in 2017, and the first in Delaware. McCoy was convicted and sentenced to death in 2012, but the Delaware Supreme Court overturned his conviction in 2015 as a result of prosecutorial misconduct and ordered a new trial. The Court suspended Deputy Attorney General R. David Favata from practice because of his misconduct at McCoy's trial, which included belittling McCoy for choosing to represent himself, making intimidating comments during a break in proceedings, then lying to the judge about making the comments. McCoy waived his right to a jury for his retrial, leaving the decision in the hands of Kent County Superior Court Judge Robert B. Young. In acquitting McCoy, Judge Young noted that there was no physical evidence against him and that two alleged accomplices had given contradictory testimony. One of the accomplices, Deshaun White, received a sentence reduction for testifying against McCoy. Upon his release, McCoy said, "I just want to say to all those out there going through the same thing I'm going through 'keep faith, keep fighting. Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man." McCoy was the second former death row prisoner in a year to be released in Delaware after obtaining a new trial for prosecutorial misconduct. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence had linked Wright to the crime. Wright was released in September 2016 after pleading no contest to lesser charges and being resentenced to time already served.

Delaware Supreme Court Decision Paves Way to Clear State's Death Row

On December 15, the Delaware Supreme Court ruled in Powell v. State that death-row prisoner Derrick Powell will get the benefit of its August 2016 decision in Rauf v. State declaring Delaware's death sentencing statute unconstitutional. The court directed that Powell be resentenced to life without parole, in a ruling that also paves the way for resentencing Delaware's twelve other death row prisoners to life. The court's holding is based upon a legal principle called retroactivity. When the court decided Rauf, it determined that Delaware's capital sentencing statute violated due process and the Sixth Amendment in part because it did not require that the jury find unanimously and beyond a reasonable doubt all facts legally necessary to impose a death sentence. Applying Delaware law, the court held that Rauf was a type of legal ruling that should apply to all capital cases in which juries did not make such a finding because Rauf had announced a "new watershed procedural rule for capital proceedings that contributed to the reliability of the fact-finding process." The court explained that, prior to Rauf, Delaware capital defendants had been sentenced to death using a "preponderance of the evidence standard" in which the death penalty could be imposed if the prosecution proved that aggravating circumstances justifying the death penalty even slightly outweighed mitigating factors that could justify sparing the defendant's life. That burden of proof, the court said, was materially lower than if juries were required rule out the death penalty if any juror had reasonable doubt as to whether the aggravating evidence outweighed mitigation. In Powell's case, his jury, applying the lesser preponderance-of-the-evidence standard, voted 7-to-5 that aggravating factors outweighed mitigating factors and recommended a death sentence. Under the court's ruling, Powell's death sentence was automatically converted to a sentence of life without the possiblity of "probation or parole or any other reduction."  The Delaware Attorney General's office did not appeal the court's ruling in Rauf, which was based solely on the federal constitution, to the U.S. Supreme Court. Because the Powell retroactivity decision is based on Delaware state law, it does not raise federal constitutional questions and would not be subject to review by the federal courts.

Voters Oust Prosecutors in Outlier Death Penalty Counties, Retain Governors Who Halted Executions

Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act. 

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

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