It’s time to strike death penalty from state code

On Jan. 25, House Bill 70 was introduced in the General Assembly to strike the death penalty from Delaware code. The death penalty was declared unconstitutional by the Delaware Supreme Court in 2016, yet it remains in code. With elimination of the death penalty, the statutory penalty for first-degree for an offense that is committed by a person 18 or older will remain imprisonment for life without benefit of probation, parole or any other reduction in the life sentence.

The death penalty is fundamentally unfair and unjust.

There are at least four reasons for the abolition of the death penalty. First, the death penalty in the United States has been applied in an unfair and unjust way that mainly targets Black defendants. Second, the invocation of the death penalty has led to the execution of innocent individuals. Third, the evidence is that it is not a deterrent to violent crime. Fourth, the death penalty system is more costly to the public than life imprisonment without parole due to the procedural safeguards necessary in death penalty cases. 

Internationally, all western European countries have abolished the death penalty. The International Covenant on Civil and Political Rights, one of the primary human rights treatises, requires signatory countries to take all necessary measures to abolish the death penalty. Similarly, the World Council of Churches, in March 1990, proclaimed its unconditional opposition to the death penalty. Likewise, Pope John Paul II, in Evangelium Vitae, explicitly called for the abolition of the death penalty, a position affirmed by Pope Francis. 

In 2009, the American Law Institute, the leading independent legal organization involved in the scholarly review of the law, deleted the death penalty from the Model Penal Code. At its 2016 national convention, the League of Women Voters also went on record supporting abolition of the death penalty.  

In Delaware, the death penalty was used in 1662 in the state’s first hanging. In 1958, Gov. Boggs signed legislation that prohibited the death sentence in capital cases. However, the death penalty was reinstated in 1961, overriding the veto of Gov. Carvel. Since then, the state’s stance on the death penalty has changed with prevailing Supreme Court decisions: repealing it in 1973, only to enact a requirement of a mandatory imposition for first-degree murder in 1974, then repealing that provision in 1977 to conform with decisions of the U.S. Supreme Court.

In 1986, the state abolished a prisoner’s option to choose death by hanging (the gallows were physically disassembled in 2003). In 1991, the Legislature gave the ultimate authority to decide the sentence to judges in capital cases. In 2002  the U.S. Supreme Court required that juries make the final decision. In Rauf v. State (2016), the Supreme Court of Delaware followed and held that a unanimous jury, not a judge, was constitutionally required to impose the death penalty. Throughout this period, only one clemency has been granted. In 2012, Gov. Markell granted clemency to death row inmate Robert Gattis.

Even though the death penalty was declared unconstitutional by the Delaware Supreme Court in 2016, the capital punishment provisions remain in Delaware code. In 2017, Rep. Steve Smyk, who now serves as Sussex County’s deputy sheriff, introduced HB 125 to reinstate the death penalty following the death of officers in the February 2017 riot at the James T. Vaughn  Correctional Center. The bill failed to receive a committee hearing in the Senate. A similar bill was introduced in 2019 by Smyk, which also failed. Other bills in that session, including a revision of the law to comply with the Rauf decision and for a constitutional amendment prohibiting the death penalty, did not pass. 

The history of the death penalty nationally, as well as in Delaware, demonstrates that HB 70 is timely and necessary. It preserves the current state of the law in Delaware in which the Delaware Supreme Court found the current provision for the death penalty in Delaware Code unconstitutional. Passage of HB 70 should be a priority for the present members of the General Assembly.