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DOVER, Del. (AP) — Delaware Attorney General Matt Denn said Monday that he will not appeal a state Supreme Court decision declaring the state's death penalty law unconstitutional, but that he believes the ruling cannot be applied retroactively to the 13 men currently on death row.
In a statement released by his office, the Democratic attorney general said he decided not to appeal the Aug. 2 ruling to the U.S. Supreme Court.
In a 148-page opinion, a majority of Delaware Supreme Court justices said the law violates the U.S. Constitution because it allows a judge to sentence a person to death independently of a jury's recommendation.
The ruling also found fault with parts of the law that allow a judge to find the existence of one or more aggravating circumstances weighing in favor of the death penalty, and because it does not require jurors to be unanimous in deciding whether any aggravating circumstances exist.
The justices said the law is also flawed because it allows the judge, not the jury, to make the crucial final determination on whether aggravating circumstances outweigh mitigating factors, thus mandating a death sentence. That determination, the court said, must be made unanimously and beyond a reasonable doubt by the jury.
Denn concluded that even if the U.S. Supreme Court reversed the split opinion on federal constitutional grounds, Delaware's Supreme Court would ultimately invalidate the death penalty law based on the state constitution.
"The Delaware Supreme Court has repeatedly stated that the Delaware constitution provides rights to a jury trial that are independent of and in some instances more expansive than those provided by the Sixth Amendment to the United States Constitution," the statement reads. "Litigating and appealing these issues — a process that would likely take years before issues of both federal and state constitutional law were resolved — would likely not only bring about the same result, but would also deny the families of victims sentencing finality."
At the same time, Denn reiterated that he would support an amendment to the existing law requiring a unanimous jury verdict in order to impose a death sentence. His agency also said it would argue that the Supreme Court decision does not retroactively apply to current death row inmates.
"It sounds like the state is going to continue to fight those cases, and they're entitled to do so, but there's a fight on the other side of that argument," said Santino Ceccotti, a public defender who successfully argued to the Delaware justices that the existing law is unconstitutional.
Ceccotti said the men currently on death row would have to challenge their sentences in federal court over the issue of retroactivity.
"In due time, that issue will be resolved," he said.
Meanwhile, Republican lawmakers have said they plan to introduce legislation to revise Delaware's death penalty law in light of the court ruling, but it's unclear whether they have enough support in the General Assembly.
A bill to abolish capital punishment cleared the state Senate by a single vote last year but was defeated in the House earlier this year. U.S. Rep. John Carney, a heavy favorite to win the Democratic gubernatorial nomination in a Democratic-leaning state, praised the court ruling declaring Delaware's law unconstitutional, saying capital punishment was "too flawed" to be considered fair or just.
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