Delaware’s Death Penalty Debate and Constitutional Challenge
Though many people do not think about the death penalty very often most people have strong thoughts on the issue of if the death penalty should still exist in America or not. The concept of the death penalty and the laws revolving around it have always peaked my interest as almost all people would never say it is okay to kill another person but yet when it comes to killing for punishment some change their tune. As a Delawarean and one who is intrigued by death penalty jurisprudence and constitutional criminal procedural in general; as soon as I heard that the Delaware Supreme Court was hearing a case to decide if Delaware’s death penalty was constitutional or not I jumped at the chance to attend the oral argument. In preparation for attending the Delaware landmark trial I read numerous news articles on the facts of the underlying death penalty case, the appellant’s opening brief, the appellant’s reply brief, the state’s opening brief, three AMICUS briefs and the opinion of Hurst v. Florida.
The day of the oral argument my legal mind was bursting with excitement about being in the courtroom during a landmark trial in my home state. I even got to the courthouse four hours prior to the doors opening to make sure that I would get a seat. Hearing some of the most skilled attorney’s in the State of Delaware arguing for their respective sides was quite a sight to see.
This paper will discuss the reasoning and public policy behind why the Delaware Supreme Court found their state’s death penalty to be unconstitutional in light of the recent Supreme Court of the United States’ decision in Hurst v. Florida. Delaware used the case of Rauf v. State in order to make this determination. In Rauf, a recent law school graduate is accused of murdering one of his law school colleagues.
Death Penalty Law Under Question
Delaware’s death penalty law, codified in § 4209, outlines the procedures for determining capital punishment in first-degree murder cases. This statute became a focal point of legal debate due to its reliance on judicial discretion in sentencing, which many argue conflicts with constitutional standards.
Sentencing Procedure
Under § 4209, for a defendant to receive a death sentence:
- The jury must unanimously find at least one statutory aggravating factor beyond a reasonable doubt.
- After the jury’s recommendation, the court independently reviews the evidence and imposes the sentence. If aggravating factors outweigh mitigating factors by a preponderance of the evidence, the court may sentence the defendant to death.
However, the jury’s recommendation is non-binding, meaning the judge retains ultimate authority to impose or reject a death sentence, even if the jury recommends otherwise.
Aggravating Circumstances
Aggravating factors are specific conditions that elevate a murder case to be eligible for the death penalty. These include:
- Murder committed to prevent arrest or effect escape.
- Killing of law enforcement or judicial officers.
- Murder involving torture or extreme cruelty.
- Victims who are children, elderly, or particularly vulnerable.
- Premeditated murder with substantial planning.
Execution Method
The statute prescribes lethal injection as the primary method of execution. If lethal injection is ruled unconstitutional, execution by hanging becomes the default method. Final approval by the Delaware Supreme Court is mandatory before any death sentence is carried out.
Case Background
Procedural Background
Benjamin Rauf (“Rauf”) was indicted for First Degree Intentional Murder, First Degree Felony Murder, Possession of a Firearm During a Felony and First Degree Robbery on December 21, 2015. Post indictment the State of Delaware (“State”) “expressed it’s intention to seek the death penalty” upon Rauf being found guilty on either of the first degree murder charges.
On January 12th, 2016 the United States Supreme Court in Hurst v. Florida announced that in capital punishment cases “the Sixth Amendment [of the United States Constitution] requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” In response to the ruling in the Hurst case the Superior Court of New Castle County in Delaware, in which Rauf’s case was on the docket of, wanted verification that the Delaware capital punishment scheme fully complied with the United States Constitution. The Superior Court on January 25th, 2016, certified five questions of law to the Delaware Supreme Court for disposition. On January 28, 2016, the Delaware Supreme Court accepted certification of the Superior Court’s questions adjusted to “focus solely on federal law, and the implications of the United States Supreme Court’s decision in Hurst.” The Delaware Supreme Court also designated Rauf as the appellant and the State as appellee for all further proceedings with respect to the certified questions. In response to the questioning of Delaware’s death penalty and its constitutionality President Judge Jan R. Jurden issued a temporary stay all two dozen plus pending death penalty cases in Delaware.
Factual Background
Shazim Uppal (“Uppal”) the murder victim and his accused murder Rauf were both recent graduates from Temple University’s Beasley School of Law. On the day of the murder Rauf used his cellphone to search “state extradition for murder” prior to the murder occurring. Uppal on the day of the murder was at a party in the Hamptons celebrating the news of a friend’s cancer being in remission, he left the party to head back to Delaware. In Delaware he went to a friend’s place to vacuum seal bags of marijuana than later that night he went to the parking lot of the nursing home, Franciscan Care Center, across the street from his family’s home to meet someone. While parked in the care center parking lot he was murdered.
Almost twenty-four hours after the murder an employee of the care center called police to let them know that the man in the car with the dark tinted windows seemed to not have moved at all in hours. When the police arrived on the scene they found Uppal’s dead body slumped over in his car parked with four bullet holes in his chest, shoulder and collar bone. Police also found four shell casings and four bullets at the scene. A shocking discovery that the police made on scene was the massive amount of marijuana in the car with Uppal, thirty-four pounds of marijuana worth an estimated $100,000. Uppal’s cellphone was never recovered, using cellphone data and GPS police discovered it’s last known location to be off of U.S. 1 in Pennsylvania.
Cellphone data lead police to the connection between Uppal and Rauf. A search warrant was executed for Rauf’s Fingerlake Region home in the town of Westerlo, New York. While searching the home police discovered two and a half bags of marijuana with the exact markings and letters on them that the marijuana found in Uppal’s car had. Also found in Rauf’s home was a gun and ammunition that matched the ammunition found at the murder scene.
Throughout the investigation police discovered that Uppal had been living a double life one as a potentially very success patent attorney who everybody thought was a great man and one as a huge drug lord. Police estimate that Uppal was moving about fifty pounds of marijuana per week totaling about $7.2 million a year in marijuana.
Specific Questions Answered by the Court and Quick Responses to them.
Question One
“Under the Sixth Amendment to the United States Constitution, may a sentencing judge in a capital jury proceeding, independent of the jury, find the existence of “any aggravating circumstances,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding”?
“No. Because Delaware’s capital sentencing scheme allows the judge to do this, it is unconstitutional”.
Question Two
“If the finding of the existence of ‘any aggravating circumstance,’ statutory or nonstatutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding must be made by a jury, must the jury make the finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards”?
“Yes. The jury must make the finding unanimously and beyond a reasonable doubt. Because the Delaware death penalty statute does not require juror unanimity, it is unconstitutional”.
Question Three
“Does the Sixth Amendment to the United States Constitution require a jury, not a sentencing judge, to find that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist because, under 11 Del. C. § 4209, this is the critical finding upon which the sentencing judge “shall impose a sentence of death””?
“Yes. Because Delaware’s death penalty statute does not require the jury to perform this function, it is unconstitutional”.
Question Four
“If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards”?
“Yes. We answer question four in the identical manner in which we have answered question two”.
Question Five
“If any procedure in 11 Del. C. § 4209’s capital sentencing scheme does not comport with federal constitutional standards, can the provision for such be severed from the remainder of 11 Del. C. § 4209, and the Court proceed with instructions to the jury that comport with federal constitutional standards”?
“No. Because the respective roles of the judge and jury are so complicated under § 4209, we are unable to discern a method by which to parse the statute so as to preserve it. Because we see no way to sever § 4209, the decision whether to reinstate the death penalty—if our ruling ultimately becomes final—and under what procedures, should be left to the General Assembly”.
Delaware Supreme Court’s Decision
The present death penalty statute in Delaware conflicts with the Sixth Amendment of the United States Constitution. The most important question before the Delaware Supreme Court is “[w]hether the Sixth Amendment requires a jury, rather than a judge, to make all of the factual findings in capital sentencing – including balancing those factors for itself in assessing whether death is the appropriate punishment – and, if so, whether the jury must make such findings unanimously and beyond a reasonable doubt”? Hurst v. Florida states, “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death”.
History of United States Supreme Court death penalty cases make it unconstitutional for statues to automatically impose the death penalty upon a defendant that is found guilty under that statute. “The option for the sentencing authority to give a prison sentence, rather than a death sentence must always exist”. For a defendant to be sentenced to death the sentencing authority must make the decision of imposing death or a lesser punishment by weighing all relevant factors of life or death rationally against each other. Hurst states that a jury not a judge must be the sentencing authority to make all “factual findings ‘necessary’ for a defendant to receive a death sentence” meaning that a jury not a judge must make the weighing of the relevant factors. The Delaware statute does not conform to this standard.
Chief Justice Strine stated that he “is unable to discern in the Sixth Amendment any dividing line between the decision that someone is eligible for death and the decision that he should in fact die”. The Delaware Supreme Court really focused and grounds it’s decision and reasoning in the Sixth Amendment right to a trial by jury. The right to a jury is of the most importance and if this right means anything it is the right to have a jury drawn from one’s own community to represent the various morals and views of the community not just the views and morals of a single judge. The importance of the right to a jury is even more fundamental when the possibility of the death penalty is on the table. A defendant’s right to a jury must exist and be respected in all phases of a death penalty case, not just in the guilt phase but also in and perhaps more importantly in the sentencing phase. A judge “may not execute a defendant unless a jury has unanimously recommended that the defendant should suffer that fate”. However, a judge may still play a role in the sentencing phase if that role is to pull the reins back on the harshness of the jury’s death decision or to make sure that proportionality exists between the penalty and the crime. In other words, a judge may never sentence a defendant to death unless the jury unanimously decides to sentence the defendant to death but the judge can choose to override the jury’s decision to sentence the defendant to death and impose a lesser sentence than death. This same conclusion could be reached by going back to the jurors’ historical role in our country; the role of safeguarding defendants from an over reaching government. The Hurst decision “recognizes the centrality of the jury’s historic role”.
Another historic judicial concept that plays an essential role in the jury’s job of making sure that no defendant is to be sentenced to death unless a cross-section of the community determines that the defendant should be sentenced to death is the requirement of unanimity among the jury and the beyond a reasonable doubt standard. These standards ensure that the jury does not sentence another to death unless the jury has “a high degree of confidence that execution is the just result”.
Public Policy and Its Effect on Supreme Court of the United States’ Jurisprudence
The Delaware Supreme Court also dives into the public policy reasons of why we as a country created a graduated punishment scheme. In the beginning of our country’s existence almost all felony convictions came with mandatory death sentences. But many Americans felt sympathy toward some of the defendants on trial for felonies and jurors took matters into their own hands and began causing a wave of jury nullification to occur, by finding defendants who they believed beyond a reasonable doubt was guilty but said they were not guilty because they did not feel that the defendant deserved to be sentenced to death. This wave of jury nullification helped expose the fact that society believed that mandatory death sentences for a crime just because it was a felony is against public policy and even though a crime may be serious it does not mean it always calls for a sentence of death. In response to and to combat the wave of jury nullification, graduated punishment schemes were put into place. Pennsylvania was the first state to enact such a scheme and the trend quickly spread throughout the country.
These graduated punishment schemes created the various degrees of murder that we are familiar with today. These degrees of murder “allow juries to convict a defendant of a degree of homicide while not exposing the defendant to death”. Historically, death penalty cases were not bifurcated meaning that without any doubt no defendant was ever sentenced to death “without a jury making all the necessary determinations required”. All of this is also true in the history of Delaware’s death penalty. The Delaware General Assembly created two schemes of murder in 1852; “with first degree murder carrying a mandatory death sentence and second degree murder carrying various harsh, non-capital sentences”.
Fast forward to the early part of the twentieth century where society again determined it was against public policy for all serious crimes to mean death as punishment. The public also called for other “sentencing options to fulfill objectives such as retribution and even loftier goals such as rehabilitation, institutions such as so-called ‘penitentiaries’ where defendants could do penance for their misdeeds emerged”. In 1932, the United States Supreme Court started incorporating the Bill of Rights for the protection of state criminal defendants. The cases incorporating the United States’ constitutional criminal procedures continued throughout the 1960s. The Sixth Amendment right to a jury trial was incorporated in 1968 in Duncan v. Louisiana. Also, throughout this timeframe following society’s wishes the death penalty saw a great drop in application, numerous states even abolished their death penalty statutes.
Delaware’s death penalty was abolished for four short years from 1958 to 1961. Delaware’s reenacted death penalty was less harsh than the prior abolished Delaware death penalty statute. The reenacted statute only created a mandatory death sentence for first degree murder, a jury safety valve was also implemented. However, this so called safety valve was not very strong. The safety valve allowed the jury to convict of a lesser offense but if they did convict of first degree murder the jury could recommend to the judge that he exercise mercy on the defendant and give him a lesser sentence than death. The reason this safety valve is weak is because the sentencing judge is free to completely disregard jurors’ pleas for mercy.
The critical role that juries play in the sentencing of death penalty cases was expressed by the public and laws across the United States, but officially put into United States Supreme Court case law in 1968 in Witherspoon v. Illinois. The Witherspoon Court stated capital juries “express the conscience of the community on the ultimate question of life or death”.
In the 1970s, “the death penalty was being more sparingly applied than at any previous time in our nation’s history, and public support for the death penalty was relatively low”. Than in 1971, the Supreme Court of the United States in McGautha v. California held that no guidance is required to be given to jurors in death penalty cases to help them decide if the death sentence is appropriate.
The following year the Supreme Court of the United States decided Furman v. Georgia, in which a violation of the United States’ Constitution’s Eighth and Fourteenth Amendments were found because the Court found the punishment of death in the cases at bar to be cruel and unusual. However, the Court limited it’s decision to the cases at bar and did not hold that the death penalty was categorically unconstitutional. Further, the Supreme Court of the United States could not provide an exact explanation to why the death penalty was considered a cruel and unusual punishment. Furman “established … that the sentencer in a capital case cannot have ‘unbridled discretion’ in sentencing a defendant”. “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”.
Prior to Furman most states gave the jury discretion to choose to impose the death penalty or not. “Furman, had the practical effect of ‘str[iking] down virtually every death penalty law nationwide’ and creating a de facto moratorium on executions”.
Furman did not have the positive affect of nationally abolishing the death penalty like the United States Supreme Court Justices hoped it would have. It actually had the exact opposite effect, many states enacted new death penalty statutes that they believed “would satisfy the requirements Furman established” and death sentences went from practically never occurring prior to Furman to being given out at very high rates. Most new statues either gave the final decision to the judge or made mandatory death sentences with convictions for specific crimes. Other statues, like Georgia’s, provided jurors with a list of aggravating factors to help them decide who should be put to death.
In 1976, the Supreme Court of the United States heard Gregg v. Georgia in which Georgia’s death penalty’s constitutionality was in question. Georgia attempted to make their statute pass the Furman criteria by “provid[ing] some sort of criteria to guide the jury’s discretion in determining whether to impose death”. Georgia’s death penalty statute was upheld and the Court further explained that Furman was to be limited to the issues existing in the statutes brought up in Furman. The Court further held “that the punishment of death does not invariably violate the Constitution” as it is not cruel and unusual punishment to execute a murderer but this type of punishment should be reserved solely for the most serious crimes.
In another post Furman case, Woodson v. North Carolina, the Supreme Court of the United States found mandatory death penalty statutes to be unconstitutional and to violate Furman.
The Supreme Court of the United States in Jurek v. Texas held that the sentencing authority must be able to consider mitigating factors not just aggravating factors; as both are relevant evidence and all relevant evidence must be able to be considered.
In reaction to the 1976 cases, states went from a traditional unitary trial model to the current bifurcated trial model for death penalty cases. Creating a guilt phase and sentencing phase of the case. States made this move because mandatory death penalty statutes were found unconstitutional. With the new bifurcated trails states had to set up procedures to help guide the sentencing authority in the sentencing phase of the trial, many created lists of aggravating and mitigating factors to consider. Many other states also set up a process of “ensur[ing] proportionality in the imposition of the death penalty”.
A concern that was occurring across the country in regards to these new so called improved death penalty statutes is that many people were being sentenced to death without their death sentence being decided by an unanimous jury.
Sixth Amendment Argument
This type of reactions by legislators caused the Supreme of the United States to start deciding Sixth Amendment death penalty cases. In Spaziano v. Florida the Court held “that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed”.
The Supreme Court of the United States made a point in the Ring decision to state that the than Delaware death penalty statue had a different type of sentencing scheme from the statute under attack in Ring. The Court went on to explain that the Delaware statute was essentially a hybrid death penalty system “in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations”. Delaware’s General Assembly became worried about Delaware’s death penalty statute being attacked because the jury’s sentencing determination was only advisory and not necessary. This prompted the General Assembly to amend the death penalty statute to its current form, §4209, containing death eligibility factors, which eliminates the advisory aspects and makes it a determinative one.
Delaware has “twenty-two circumstances that can make a defendant death eligible. In 1991, Delaware “eliminated the unanimous jury requirement in capital sentencing as a direct response to the failure of prosecutors to convince an entire jury to vote for death in a high-profile case”.
In 2000, the Supreme Court of the United States decided the landmark case of Apprendi, which created the arguments behind Hurst that in turn created the arguments behind this case. The issue in Apprendi was if a judge instead of a jury could find the facts that lead to an increasement in the defendant’s maximum sentence. The holding in Apprendi was that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. In Ring v. Arizona, the Supreme Court of the United States applied Apprendi to a death penalty case. The Court extended Apprendi to death penalty cases, stating “[c]apital defendants no less than noncapital defendants… are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment”. Stated another way, “[i]f a state makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the state labels it – must be found by a jury beyond a reasonable doubt”.
The current Delaware death penalty statute was last amended, in relevant part to this case, in response to Ring. This change to the statute “provided that the jury’s findings as to whether any death eligibility factors existed and whether the aggravating factors outweighed the mitigating factors were just advisory”. Meaning that the sentencing judge not the jury would make the ultimate decision in both the guilt phase and sentencing phase. The Delaware statute functioning in this way made sense considering outcomes of the numerous post Furman holding. This is because the statute only allowed a limited type of homicides, “that involved statutorily defined circumstances,” to even open up the door to death penalty potential. In addition, during the sentencing phase is where the aggravating and mitigating factors can be rationally weighed against each other. Also, the death penalty was never mandatory it could only occur once all mitigating factors were rationally and fully considered. As an additional safe guard the statute provided all defendants sentenced to death would be entitled to appellant review to help prevent the death penalty from being arbitrarily imposed on any defendant.
Delaware Death Penalty Cases
With the new §4209 in place the Delaware Supreme Court decided Garden v. State. In this case the Superior Court’s jury in ten to two recommended a life sentence for the defendant and in nine to three for felony and intentional murder charges. The Superior Court sentenced the defendant to death. The Delaware Supreme Court reversed the defendant’s death sentence because of the judicial override of the jury’s recommendation shown by the Superior Court. The Court held that the trail judge is required “to ‘give great weight’ to the jury’s recommendation and … not override the advisory verdict of life unless the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ”. Delaware’s General Assembly was not a fan of this outcome so they again amended §4209 to essentially “override Garden’s ‘greater weight’ standard”. The amendment stated “to provide that the jury’s recommendation shall only be ‘given such considerations as deemed appropriate’”.
§4209 In Motion
As with all death penalty cases throughout our country, Delaware has bifurcated trials; a guilt phase and a sentencing phase. The same jury acts as the jury in both the guilt phase and sentencing phase, that is unless the defendant choose to waive their right to a jury trial. When the right to a jury trial is not waived the same jury must answer these two questions: “(1) [w]hether the evidence shows beyond a reasonable doubt the existence of at least 1 aggravating circumstance [i.e., death eligibility factor] as enumerated in subsection (e); and (2) [w]hether, by a preponderance of the evidence .. . , the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.”
Under Delaware’s current statute the guilt phase only involves the role of the jury, the judge plays no role at all. The jury alone must determine beyond a reasonable doubt if at least one of the statutory death eligibility factors exist, and this determination must be unanimous. If the jury does not come to a unanimous beyond the a reasonable doubt finding of the existence of one of the statutory death eligibility factors than “the judge must sentence the defendant to life imprisonment”. However, if the opposite occurs the sentencing phase of the bifurcated trial gets triggered because the defendant is considered death penalty eligible.
Once in the sentencing phase of the trial both the jury and judge play a role. It is important to note that the sentencing phase’s soul-purpose is to “ensure that the punishment is appropriate and proportional.” This phase does not in any way actually increase any type of punishment that the defendant may receive, as they were already decided to be death eligible. There are two stages within the sentencing phase –
“First, the jury decides ‘[w]hether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation . . . , the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.’ Then, the Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence . . . that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist”.
As discussed earlier the jury’s finding of a statutorily aggravating factor “shall not be binding on the court” but “shall be given such consideration as deemed appropriate by the court.” Thus the judge alone has the ultimate say in if the death penalty eligible defendant shall be sentenced to death or not.
In Brice v. State, the Delaware Supreme Court determined that what allows a defendant to be death penalty eligible is when the jury unanimously beyond a reasonable doubt finds that at least one of the statutory aggravating factors exists not the judge’s final decision during the sentencing phase. Brice also held that a judge during the sentencing phase can consider other aggravating factors not found by the jury when making their ultimate decision, as the jury already found at least one aggravating factors already existed and that in itself in enough to trigger the judge strong sentencing phase.
Hurst and Rauf
In 2016 the Supreme Court of the United States in Hurst found that Florida’s death penalty statute violated the constitution. Because of the Hurst decision the Superior Court of New Castle County in Delaware became concerned that the Delaware death penalty may as well be unconstitutional.
The death penalty statute in Hurst is different from the present Delaware death penalty statue in three main ways. 1) The Hurst statute gave the jury the job to decide if a death penalty eligibility factors exists and if the mitigating factors outweigh the aggravating factors all by a majority. 2) The Hurst statute did not require that the death penalty eligible factor existed beyond a reasonable doubt. 3) Also, the jury made “an ‘advisory sentence’ of life or death without specifying the factual basis of its recommendation”. Whereas in Delaware the jury has to unanimously beyond a reasonable doubt find a statutory death penalty eligibility factor. Also, in Delaware the “aggravating factors outweigh the mitigating factors” must be found by the jury under the standard of a preponderance of the evidence. The Delaware jury’s recommendation is also advisory but “does not ask jurors to specifically vote whether they believe death is the appropriate punishment”. Notwithstanding these various differences in the Hurst and Delaware statues they are extremely similar within the core of the statutes. “Both… leave the ultimate sentencing phase and the final sentencing decision in the hands of a judge. Both have a jury make a recommendation to the court, but this is merely advisory”.
The core commonality of the jury only having a recommendation and the ultimate decision of death being left up to the judge is where the Supreme Court of the United States attacked the Hurst statute. The Hurst statute only makes a defendant death eligible when the court, not the jury, makes the findings that the defendant should be death eligible. The Court also held that that the Hurst statute is unconstitutional and violates the Sixth Amendment because “[t]he Sixth Amendment requires a jury, not a judge to find each fact necessary to impose a sentence of death”.
In Supreme Court Justice Breyer’s concurrence on Hurst he rooted his unconstitutionality of Hurst’s statute in the Eighth Amendment’s no cruel and unusual punishment stating “that no death penalty sentence can be imposed without ‘a jury, not a judge, mak[ing] the decision to sentence a defendant to death’”. In other words, non-cruelty of a death penalty sentence cannot be guaranteed unless a jury, made up of a cross-section of one’s community unanimously decides that a sentence of death should be imposed.
Justice Alito dissented in Hurst, he did not believe that there is a Sixth Amendment right to have the decision of being sent to death made by a jury. One only has a Sixth Amendment right for a jury to decide if they are guilty or not during the guilt phase of the death penalty. Alito also believes that Ring should be reconsidered.
Upon the decision of Hurst coming down the Supreme Court of the United States shortly after “vacated three Alabama death penalty convictions”. No guidance was provided as to why these convictions were overturned but one can make the logical assumption that it is because the involved Alabama death penalty statutes allowed for the final decision of death to be left up to the judge and not to the jury.
Five Certified Questions
The Delaware Supreme Court focused on the question of if the judge or jury must make the decision of if the defendant should be sentenced to death or not. This question could potentially be answered very simply if the necessary in Hurst actually, 100%, means necessary, which would make Delaware’s death penalty statute unconstitutional. Because under the Delaware statute findings as to the eligibility of the death penalty are required but this in itself is not enough to enable a defendant to be sentenced to death.
In deciding this case the Delaware Supreme Court choose to accept the broader interpretation of the word necessary not a more limited narrow interpretation. Although the Court admits that, “Hurst can be read as having used the loose language of necessity to describe only what is necessary to make a defendant death eligible, especially because the statute at issue in Hurst failed on that narrower basis, which Delaware’s does not”. However, Delaware’s Supreme Court is “reluctant to conclude that the Supreme Court of the United States was unaware of the implications of requiring ‘a jury, not a judge, to find each fact necessary to impose a sentence of death’”.
In addition, the Delaware death penalty is unlogical beyond just the outcome of Hurst. It is unlogical in relation to the Sixth Amendment, Eighth Amendment and the Founders importance on juries. “The Founders viewed juries as so fundamental to the democratic experience that the right to a jury in criminal trials is the only right expressly included twice in the Constitution”.
“As Declaration of Independence signee and future federal judge Francis Hopkinson wrote in 1786: [The authority to sentence] can no where be lodged so safely as with the jury who find the fact. The proportion of punishment, equitably due according to the nature of the offence, is not a question involved in the technical subtleties of the law; but arises from the particular circumstances of the case, . . . and an honest, impartial, and conscientious jury, are as competent to this purpose, as the most profound judge. They will necessarily have heard the state of the whole matter, with the arguments for the prosecution, and in behalf of the prisoner; and being a temporary body, accidentally brought together, and impaneled for the occasion, are more likely to do substantial justice, than a judge who is so hackneyed in criminal prosecutions….”
Jury sentencing is strongly rooted in the history of our country and given that, “it should come as no surprise that ‘jury sentencing is… the norm for capital cases’”.
It is clear that Hurst is a step in the right direction, a direction toward protecting the constitutional criminal procedure rights of criminal defendants. Very importantly the constitutional right to have a trial by jury made up a cross-section of their community.
The aggravating and mitigating factors that must be balanced against one another are the type of questions that should be answered by the jury. Aggravating factors approved by the Supreme Court of the United States include “whether the crime was committed in the course of one several enumerated felonies, whether it was committed for pecuniary gain, whether it was committed to assist in an escape from custody or to prevent a lawful arrest, and whether the crime was especially heinous, at rocious, or cruel”. Mitigating factors approved by the Supreme Court of the United States include “whether the defendant has a prior criminal record, whether the defendant acted under duress or under the influence of extreme mental or emotional disturbance, whether the defendant’s role in the crime was that of a minor accomplice, and whether the defendant’s youth argues in favor of a more lenient sentence than might otherwise be imposed”.
By considering the weighing of mitigating and aggravating factors as “a ‘fact finding’ essential to the imposition of a death sentence, voila, a Sixth Amendment right is created”.
“The Supreme Court of the United States has long stated that ‘death is different’”. “Many cases recognize that the Constitution’s protections apply with special force to capital cases, because of their uniquely high stakes”. The importance of factual determinations being made beyond just the realm of death penalty cases is because “appellate courts give enormous deference to a judge’s or jury’s sentencing determination precisely because of the factual nature of the issues involved in sentencing”.
The Delaware Supreme Court stated that the right to a jury is a fundamental right, and this fundamental right should be fully enforced as it was understood at the founding of our country which “involve[d] the right to have a jury determine whether a death sentence should be imposed”. The concept of death being unique is a long standing concept in our country’s history, this is why historically a jury always needed to unanimously agree that the death sentence should be imposed. Furman essentially upset 200 years of jurisprudence, a jurisprudence Hurst will take us back to. The role of a unanimous jury in death penalty cases arguably plays a more critical role in the sentencing phase than in the guilt phase.
“In allowing judges rather than juries to make ‘a choice between life and death,’ the Delaware statute ‘sanctions a practice that the Framers never saw and would not have tolerated. Throughout our history, capital sentencing had been a ‘responsibility traditionally left to juries,’ and the decision of whether a ‘fellow citizen should live or die’ has been considered a responsibility too great for any one person to make alone”.
In addition, to the historical reasoning beyond the Delaware Supreme Court’s decision is the fact that when one’s right to trial by a jury is removed from death penalty cases it “creates a strong argument that the resulting punishment is unusual”. Cruel and unusual punishments are in violation of the Eighth Amendment. The role of the jury is even more critical in death penalty cases. Criminal defendants’ criminal procedural rights must be safe guarded and having somebody be sentenced to death without the unanimous decision of a jury is denying them their fundamental criminal procedural protections. The Delaware Supreme Court believes that this Eighth Amendment approach to the argument is essentially a wraparound argument of the Sixth Amendment approach to this issue. “That is, that a defendant had a right to have a jury say whether he should live or die. That this fundamental, historical right is respected and restored is more important than the numerical constitutional amendment under which it happens”.
The Delaware Supreme Court also notes that Hurst and this opinion do not mean that a judge cannot play any role in death penalty cases. A judge may constitutionality override a jury’s unanimous decision to put a defendant to death and give the defendant a more merciful sentence but may not do the opposite.
Conclusion
Chief Justice Strine makes a point of stating that the concept of ‘unanimously’ is very important in this decision as it has been important in the jurisprudence traditions of Delaware and the country as a whole. “The unanimity requirement is vital to making sure that jurors deliberate and take each other’s votes seriously, and that all jurors have equal voice in making this most critical of decisions”.
Delaware’s death penalty statute was “an innovation expressly intended to bypass the safeguard that a unanimous jury requirement provides against the imposition of the ultimate punishment of death”. This statute does not comply with the requirements of Hurst. Hurst requires that death can only be imposed when a jury, not a judge, makes the required findings for the imposition of death, and the jury must be unanimous.
“The Sixth Amendment right to a jury includes a right not to be executed unless a jury concludes unanimously that it has no reasonable doubt that is the appropriate sentence”.
Is Rauf Retroactive?!
The Supreme Court of the United States never addressed in Hurst if the decision was retroactive or not. In other words, the Court never stated if the ruling would apply to old cases meaning that the almost 400 Florida death row inmates would be taken off death row or if the ruling only applied to Hurst and future death penalty eligible defendants. Which left it up to the state of Florida to decide if they should continue with scheduled executions for those who were put on death row prior to the Hurst decision, if they keep all current death row inmates on death row and if those who have not yet completed all their appeals should be removed. The state of Florida had Cary Michael Lambrix’s execution scheduled for a month after the Hurst decision came down. In Lambrix’s trial in 1983 the jury in an eight to four vote recommended that he received death and the judge than imposed the death penalty. Leaving the Florida Supreme Court to decide if Lambrix’s execution should occur or if the Hurst decision should be applied retroactively to Lambrix and the other Florida death row inmates; as all of the death “sentences were imposed in a way that’s now deemed unconstitutional”.
The State of Florida believes that Hurst is not to be applied retroactively and Lambrix’s execution should continue as scheduled and that all current death row inmates’ sentences should remain as they are. Arguing that Hurst essentially builds on the earlier Supreme Court of the United States’ prior case of Ring v. Arizona. “‘If Ring is not retroactive,’ [Florida] prosecutors wrote in their brief, ‘then Hurst cannot be retroactive’”.
Lambrix’s defense counsel, Martin McClain, argued that the Hurst decision should have the same effect on Florida’s death row as Furman had. As discussed in detail earlier in this paper when Furman came down it appeared to make the death penalty as a punishment unconstitutional. In response to Furman Florida “vacate[d] every single death sentence, no matter when it had been entered, and converted it to a life sentence”.
Neither side needed to wait very long to hear an initial decision from the Court, the Court granted a stay of execution just hours after the hearing. The Court has not yet made any further statements on the issue. However, this does not seem to be stopping the State of Florida from planning on moving forward with scheduled executions. Assistant State Attoreny Bernie de la Rionda’s “opinion is that for people who were previously tried, convicted and sentenced to death – this ruling should not applied retroactively”. The State Attorney Elect Melissa Nelson plans to go “forward with death penalty cases in the absence of the legislature amending the law [in a way that] could lead to reversals on appeal”.
With the question of Hurst being retroactive or not still being in limbo in Florida it does not give Delaware very much guidance on if it’s Rauf decision should be retroactive or not. Just like the Supreme Court of the United States the Delaware Supreme Court did not provide any guidance as if their decision would be retroactively applied or not.
Delaware’s Attorney General, Matt Denn, “will not appeal” the Rauf decision but “he still plans to push for the thirteen men currently on death row to be executed”. By making this statement Denn is essentially stating that he does not believe that Hurst nor Rauf should be applied retroactively. While the Chief of the Public Defender’s Office, Brendan O’Neil believes that Hurst and Rauf should be applied retroactively because the “mere timing” of the defendant’s trial “should not result in some people being executed while others are not”.
As of now the State of Delaware will continue to execute the thirteen men on its death row, it will not retroactively apply Hurst or Rauf. It is very likely this will remain true until the General Assembly or the United States Supreme Court or Delaware Supreme Court say otherwise. Many people believe that the General Assembly has yet to address this issue head on because of the death penalty being a hot topic
Potential Ways to Fix the Unconstitutionality/Should it be fixed?
Since the Supreme Court of Delaware has declared §4209 unconstitutional and that the statue cannot be severed by the Court to make it constitutional Delaware currently does not have a death penalty. In order to so call “fix” the statute Delaware’s General Assembly would need to enact a new death penalty statue. This new statute would need to comply with the requirements of Hurst and Rauf meaning that the General Assembly would need to only give the jury the authority to sentence a defendant to death and the jury must unanimously decide that the defendant is to be sentenced to death.
I believe that there is a good chance that Delaware will reenact the death penalty. Just days after the Delaware Supreme Court released its decision in Rauf, fifteen of the twenty-five Republicans in the General Assembly, the General Assembly is made up sixty-two members total, publically said “they will propose a bill in the next session, which starts in January” to reenact the death penalty. Many members of the General Assembly making statements that they fully support a death penalty as long as its procedural are properly set up and that they believe that they could get the votes for it to be reinstated. One of the republicans supporting the reinstatement is a former Delaware State Trooper, Senator Dave Lawson, who has first-hand experience of the heinous crimes that he and other death penalty supporters believe deserve a death sentence. When this proposed death penalty bill comes up to discussion and voting time one can be sure that Lawson and others in like positions will use these very personally experiences to try to sway the votes in their favor.
Another Senator days after Rauf, wrote an article regarding the 2009 murder of a police officer and how the defendant was sentenced to death and how he and his community felt the same way about the outcome of the case as then Attorney General Beau Biden felt; “[t]he bottom line is that justice was done today”. The mother of the murdered police officer publically spoke out and stated that she was against Rauf being applied retroactively because she did not believe that her son’s murder’s punishment should be changed nor should any other prior death sentence because they got the sentence they deserved.
The majority of Delawareans support the death penalty. Sixty-three percent of Delawareans support the death penalty according to a poll given in April 2015. In a survey from this October, fifty-five percent of Delawareans supported the death penalty while only forty percent opposed it. With the majority of Delawareans supporting the death penalty it increases the chance that the member of the Delaware General Assembly will vote for the death penalty to be reenacted.
If the majority of society believes that the death penalty must exist, they must also feel that the death penalty is not against public policy. Since we live in a democratic society if the majority of society wishes for the death penalty to be an available punishment than I believe that that the death penalty should be a punishment option. However, the death penalty itself may not be against public policy but when it is imposed in way that violates the United States Constitution or the Delaware Constitution than it is always against public policy let alone unconstitutional.