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.