A Blow to Delaware's Death Penalty

The state supreme court ruled the sentencing scheme violated the Sixth Amendment’s right to a jury trial.

Protesters calling for an end to the death penalty unfurl a banner before police arrest them outside the U.S. Supreme Court in 2007. (Jason Reed / Reuters)

The Delaware Supreme Court struck down the state’s death-penalty statute Tuesday, ruling that the latitude it granted to judges during the sentencing phase violated the Sixth Amendment.

Most high-profile death-penalty cases revolve around the Eighth Amendment’s prohibition of cruel and unusual punishment. But Rauf v. Delaware instead centers on the Sixth Amendment and the right to a jury it protects.

States with the death penalty generally require a jury to weigh aggravating and mitigating circumstances before sentencing a defendant to life imprisonment or death. At the start of 2016, three states—Alabama, Delaware, and Florida—allowed judges to impose a death sentence independent of the jury’s determination. In some cases, judges could override a jury’s recommendation of a life sentence and impose death instead.

Those statutes came under renewed scrutiny in January after the U.S. Supreme Court struck down Florida’s death-penalty statute in Hurst v. Florida. Florida’s procedures only allowed jurors to render an “advisory sentence” during the sentencing phase; state judges could then independently weigh the factors and hand down life or death.

The Court struck down the scheme by an 8-1 vote. Writing for the majority, Justice Sonia Sotomayor noted that like earlier sentencing procedures quashed by the Court, “Florida does not require the jury to make the critical findings necessary to impose the death penalty.” By handing that power to the judge, the system ran afoul of the Sixth Amendment.

The Court’s ruling in Hurst proved fatal to Delaware’s death-sentencing procedures. Under state law, jurors only need to unanimously agree that at least one aggravating factor exists for a judge to hand down a death sentence. Jurors then also determine whether the aggravating factors outweigh the mitigating factors. But, unlike in almost all other states with the death penalty, that calculus doesn’t bind the judge, who can hand down a death sentence of his or her own accord.

In a concurring opinion joined by two other justices, Delaware Chief Justice Leo Strine laid out a lengthy history of American capital punishment and the paramount role juries played in it. A fourth justice partially concurred with the decision, arguing that some of the questions answered by the Court should have been left to the Delaware legislature.

Only Justice James Vaughn Jr. argued against applying Hurst to the state’s death-sentencing procedures. Central to his reasoning were significant differences between Florida’s unusual system and the methods used by Delaware.

“Since the jury’s role was purely advisory, the judge could reject a jury finding that no statutory aggravating factor existed and sentence the defendant to death based on his or her own findings,” he wrote, describing the Florida scheme struck down by Hurst. “That cannot happen under Delaware’s statute,” which requires the jury to find at least one aggravating factor before proceeding, he noted.

While Strine acknowledged Hurst could be read differently, he stood by his conclusions about its applicability to Delaware.

“For myself, however, I find it impossible to embrace a reading of Hurst that judicially draws a limit to the right to a jury in the death penalty context to having the jury make only the determinations necessary to make the defendant eligible to be sentenced to death by someone else,” he wrote, “rather than to make the determinations itself that must be made if the defendant is in fact to receive a death sentence.”