The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state’s death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida’s sentencing scheme, saying that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware’s system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. “The Sixth Amendment requires not a judge, but a jury, to find each fact,” he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware’s weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida’s new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.

(R. Chase, “Delaware court mulls constitutionality of death penalty law,” Associated Press, June 15, 2016; C. Anderson, “Delaware Supreme Court hears death penalty arguments,” Delaware State News, June 15, 2016.) Read the briefs and watch oral argument in Rauf v. State here. See Sentencing.

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