Delaware Officially Removes Death Penalty from State Statutes Eight Years After State Supreme Court Finds It Unconstitutional

On September 26, 2024, Governor John Carney (D) signed House Bill 70, which officially repeals the death penalty from the state’s law. Although Delaware’s Supreme Court found its death penalty statute to be unconstitutional in 2016, invalidating it for future use and effectively abolishing capital punishment, the passage of HB 70 amends Title 11 of the state’s code to remove the death penalty and replace it with life without parole as the most severe punishment for first-degree murder for accused persons over 18 years of age. 

“I know we have focused on whether the death penalty should be used in Delaware, but currently this statute is unenforceable. Removing it ensures that it is… out of our code,” said Senator Kyle Evans Gay (D).  

Primarily sponsored by Rep. Sherry Dorsey Walker (D), HB 70 was introduced in the House on January 25, 2023. It passed the House 33-8 on June 18, 2024, moving to the Senate, where it passed 14-7 on June 27. “The death penalty is cruel and unjust,” said Rep. Walker in a statement. “Over the last few years, my colleagues and I have worked tirelessly to create a more fair and logical criminal justice system in Delaware.” 

Legislators had previously sought to repeal the death penalty during the 2015-2016 legislative session in light of former Governor Jack Markell’s (D) announcement that he’d sign an abolition bill. The bill passed the Senate in April 2015 and passed the House Judiciary Committee in January 2016, where it then failed to win approval in the House. The House tabled reconsideration of its vote pending the outcome of a court case, Rauf v. State, which challenged the constitutionality of the state’s capital sentencing procedures. On August 2, 2016, in Rauf, the Delaware Supreme Court ruled that the statute violated capital defendants’ right to a jury trial by allowing the judge, rather than the jury, to determine whether the prosecution had proven all the facts necessary to impose a death sentence and by permitting death sentences to be imposed without a unanimous jury vote.. On August 15, the Attorney General announced he would not appeal the decision. Subsequently, on December 15, 2016, the court ruled in Powell v. State that its ruling in Rauf applied to the 13 remaining prisoners on the state’s death row, thereby reducing their sentences to life with parole. 

Delaware is not the only state to legislatively repeal the death penalty years after abolishing it legally. Last year, Washington enacted SB 5087, which amended its constitution to align with the state supreme court’s ruling in State v. Gregory (2018), which declared its death penalty statute unconstitutional because it was applied in an arbitrary and racially discriminatory manner.