Death Penalty

Delaware Supreme Court Rules Death Penalty Unconstitutional

Judges say death penalty violates 6th Amendment right to a jury


Brian Baer/ZUMA Press/Newscom

Delaware's use of the death penalty is unconstitutional, the state's Supreme Court has ruled.

Because judges, not juries, have the power to sentence convicts to death, the penalty is a violation of the Sixth Amendment, the court ruled. The question of Delaware's use of the death penalty was prompted by a U.S. Supreme Court ruling in June that found Florida's death penalty to be unconstitutional for the same reason.

The court's ruling was unanimous.

"If the right to a jury means anything, it means the right to have a jury drawn from the community and acting as a proxy for its diverse views and mores, rather than one judge, make the awful decision whether the defendant should live or die," wrote Chief Justice Leo Strine in the opinion.

"Put simply, 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," Strine concluded.

There are 32 states that use the death penalty, but Alabama is the only other state in the country where judges have the authority to issue death sentences, according to the Death Penalty Information Center.

The Delaware General Assembly will have to decide whether to reinstate the death penalty with juries having the final say.

The last execution in Delaware took place in 2012, when 28-year old Shannon Johnson was executed via lethal injection for the murder of Lakeisha Truitt. The state has executed 16 people since the death penalty was reinstituted at the federal level in 1974. There are 18 people on Delaware's death row, but it's not immediately clear if they will be given new sentences or new trials.

The ruling in Delaware is the latest blow to states' ability to put criminals to death.

In January, the U.S. Supreme Court ruled, 8-1, that Florida's death penalty was unconstitutional. Juries in Florida were allowed to make recommendations, but the final decision was left to a judge.

In response to that ruling, Florida stayed two planned executions and the state Supreme Court is now deciding if the 330 inmates on the state's death row should get new sentencing trials.

In April, an Oklahoma grand jury investigating the cause of several botched lethal injections released a scathing report detailing the use of incorrect drugs that caused excruciating pain, and the cavalier attitude of state officials who went ahead with executions even though they knew the drugs were wrong.

Louisiana and Ohio have announced temporary shut-downs of their execution chambers due to drug shortages and several other states have considered using alternative methods like the electric chair and the gas chamber.

In November, voters in California will have the opportunity to vote on Proposition 62, which would eliminate the death penalty and replace it with life in prison without parole. A second initiative, Proposition 66, would speed up the process of executing California's death row inmates in the name of saving money.

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  1. So then the remedy if Delaware wants to keep the death penalty would be to put that decision off on the juries?

    1. I would think so. But I didn’t go to a fancy pants law school. But I only have the ability to read things literally and not twist them into whatever outcome is required based on the feelz of the decade.

  2. Does that make any sentence put forth by a judge unconstitutional?

    1. Sure sounds like it.

      1. It should mean that but sadly it probably doesn’t. This is a piece of one off results based reasoning by an anti death penalty court.

        It would be nice if courts would take the right to a jury trial seriously. I don’t think you can square minimum mandatories or binding plea bargains with the right to a jury trial. Every defendant has a right to trial by their peers. And that means a punishment determined by their peers, not some careerist prosecutor.

        You want to have guilty pleas? Fine, give them in return for a sentence cap but still have juries and only juries decide the sentence. The person pleading guilty gets the lesser of the cap or what the jury decides. Gasp, give people due process.

        1. I think the death penalty should be abolished for a long list of reasons, but the lack of jury trial rationale doesn’t hold up to even the slightest scrutiny for the reasons you stated.

      2. Logically, yes. Sadly logic has no place in law last I checked.

        They should be required to illustrate how Jury Nullification works before every trial in my opinion.

        1. I imagine that if a lot of the cases that get pled out were to go to trial instead, we’d see a good many jurors figuring out the whole nullification thing on their own.

          1. The problem is that you have to get a critical mass of them, which makes it a chicken and egg problem. Most people plead out because they have good reason to believe they’ll be convicted at trial. It doesn’t hurt that the prosecutors get to stack charges when they feel like it, or that juries end up being biased from voir dire rather than truly chosen by sortition.

  3. Isn’t the fact that the death penalty is one of the possible sentences for the crime known to the jury at the time they convict?

    Is the goal here to pound in the jury’s head “he’s going to die if you convict” until they won’t convict? Or is it to have the jury decide the sentence, as well as the guilt, of the defendant?

  4. Isn’t the death penalty specifically called out in the constitution for treason? How can you then rule the death penalty per se is unconstitutional? At most it can be ruled against the 6th as a penalty for specific crimes.

    1. Oh, in Delaware. I just stayed typing before reading.

    2. Isn’t the death penalty specifically called out in the constitution for treason?


      The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    3. Even if it were called out, amendments supersede the constitution proper… that’s the point

  5. Awesome. One more down, 31 more to go.

    1. Who knew Hugh was offering his place to house violent felons?

      The more you know…

      1. I don’t need to offer my place. The state already has prisons to house violent criminals.

        1. That’s only fair, it makes most of them.

        2. And that state is a polity, the voting members of which have not (yet?) decided that individuals sentenced to death should instead be housed at their expense indefinitely.

          1. Executions tend to be more expensive than life sentences these days

            1. Yes, the point of it has largely been lost.

  6. What is the objective of death penalty (versus life in prison)?

    1. Weregild, mostly.

      1. more like an abandonment of weregild… it’s back to a nice vengeance system and the taxpayers pay to kill them instead of the victims!

    2. Setting aside all the baggage of the death penalty in the US, the objective is expediency. The individual to be killed has been convicted of an offense of such great magnitude that he has forfeit his life, and so any further deliberation is pointless.

      Needless to say, as presently constituted in most states, the death penalty scarcely seems to make much sense and just seems like a gruesome end to an intentionally convoluted and drawn-out process.

    3. Vengeance, mostly.

      Rendering your wrongful convictions uncorrectable is just a bonus.

      1. Vengeance, mostly.

        This is not wrong, but it’s important to remember that the state’s role in the affair is to act as a buffer against the vengeance impulses of the people who feel wronged in order to protect the rights of the accused. The state carrying out due process and arriving at a sentence of death is not worse than the lynch mob.

        Obviously, with a powerful enough state, you can cow people into not acting on those impulses too often. But you do so by basically robbing them of agency, which is ultimately just a recipe for institutionalized, state-sponsored criminality instead. If the people don’t feel they’re getting individual justice, they’re going to pursue collective “justice” instead.

        1. The flip side to my argument I guess would be states that are all too happy to execute people. I’d rather liver under a state with no death penalty than one who executes people on a whim.

          The death penalty, versus just a state execution, is a punishment for a heinous crime following a fair trial. Some states will have it, some won’t. It is not to my mind incompatible with classical liberalism or the Constitution, with the current set of Amendments.

    4. Justice is repayment. If you steal $100 from me, direct justice would be for you to repay me $100 (perhaps + expenses). It is literally “an eye for an eye”. This is what justice looked like before government perverted it.

      What is the objective of the death penalty? Justice. You take a life unjustly, you die. Technically, your life would be the next of kin’s to do with as they please, either to kill you (direct justice), fine you (partial justice), or let you go (forgiveness of your “debt”).

      Modern humans are so used to the current governmental systems that we actually don’t know what justice means anymore, not even libertarians.

      1. I don’t agree, exactly.

        Justice is the absence of injustice. It is not inherently just for me to take $100 from you even if you took $100 from me first. But you’ve already denied me justice; giving me remedy will never truly undo that injustice in the past but it will bring us closer to a state of justice now. The government is there to manage this process and prevent me from being unjust to you. Even though “you started it”, I only have so much right to remedy.

        I agree wholeheartedly though that the current governmental system has distorted people’s understanding of this. The government isn’t there to bring justice to us, for justice is something that only we can provide to each other. The government is only there to keep injustice from begetting injustice.

        1. Put a different way, which is more just?

          1. Neither of us ever taking from each other
          2. Me getting $100 back from you after you stole $100 from me

          It should be obvious that (1) is better. That is justice. But (2) begins with a unjust premise, and thus is about a resolution which is not itself a greater injustice.

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