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.”

(J. Masulli Reyes and M. Albright, ​“AG won’t appeal Delaware death penal­ty rul­ing,” The News Journal, August 15, 2016; Press Release, ​“Attorney General Will Not Appeal To U.S. Supreme Court On Death Penalty,” Delaware Department of Justice, August 15, 2016.) See Sentencing and Recent Legislation. Read DPIC Executive Director Robert Dunham’s analy­sis of the nation­al impact of Rauf.

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