Del. Prosecutors Weigh in on Death Penalty Questions - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Del. Prosecutors Weigh in on Death Penalty Questions

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The Del. Supreme Court which is considering questions about the constitutionality of a judge's involvement in death penalty sentencing in Delaware. (Photo: WBOC Ryan Stanley) The Del. Supreme Court which is considering questions about the constitutionality of a judge's involvement in death penalty sentencing in Delaware. (Photo: WBOC Ryan Stanley)

DOVER, Del.- The Delaware Department of Justice has weighed in on death penalty questions being considered by the Delaware Supreme Court.

The questions before the court center around whether or not a judge can be involved in finding aggravated and mitigating circumstances when considering whether or not to impose the death penalty. In current Delaware law, a judge can be.

Questions were presented to the Delaware Supreme Court after the United States Supreme Court ruled Florida's death penalty statute unconstitutional.

In the Hurst v. Florida ruling in January, Justice Sonia Sotomayor wrote for the seven justice majority.

"The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death," she wrote. "A jury's mere recommendation is not enough."

The state filed a brief that suggests Delaware does involve a jury by requiring a capital jury to unanimously find at least one statutory aggravating fact before the court can even consider a sentence of death. They write that in Florida, a trial judge alone could have found a fact leading to the sentence of death penalty.  

The questions came around the same time the House of Representatives failed to pass legislation that would have repealed the death penalty in Delaware. The legislation was likely to come back up, but lawmakers backing the bill decided to wait for the Delaware Supreme Court decision.

The Public Defender's Office believes the judge's role is unconstitutional. The office has argued strongly for the court to strike down the law altogether, suggesting it would need to be restructured if the judge's role was removed. The legislature would then need to debate on whether or not to pass a new death penalty law. 

The court could also decide to simply remove the judge's role and leave the rest of the law intact. That could pave the way for another repeal effort in the legislature.

After the Public Defender's Office responds to the Department of Justice brief, the court will either make a decision or schedule oral arguments.

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