Delaware Supreme Court Strikes Down Death Penalty As Unconstitutional

The death penalty appears to be effectively dead in Delaware thanks to a decision by the State Supreme Court.

Death Chamber

The Supreme Court of Delaware has ruled that the state’s death penalty law is unconstitutional because of the manner in which it is imposed:

DOVER, Del. — Delaware’s death penalty law is unconstitutional in light of a U.S. Supreme Court ruling earlier this year, the state’s high court ruled Tuesday.

In a 148-page opinion, a majority of Delaware Supreme Court justices said the state law violates the U.S. Constitution because it allows a judge to sentence a person to death independently of a jury’s recommendation.

The court said the law is unconstitutional because it allows a judge, independently of the jury, 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.

“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 Jr.

Justice Karen Valihura concurred in part with the majority opinion but issued a partial dissent regarding jury unanimity and whether the weighing of aggravating and mitigating circumstances must be done by a jury instead of a judge.

Meanwhile, Justice James Vaughn Jr. dissented in full from his colleagues, noting an important difference between Delaware’s law and a similar Florida sentencing scheme that was struck down by the U.S. Supreme Court. Unlike under the Florida law, Vaughn said, a person in Delaware is not eligible for the death penalty until and unless a jury finds unanimously and beyond a reasonable doubt the existence of at least one specific statutory aggravating factor.

“I am satisfied that Delaware’s death penalty statute complies with the Sixth Amendment as the law on that amendment is currently interpreted by the U.S. Supreme Court,” Vaughn wrote.

The justice agreed, however, that any problematic provision of Delaware’s death penalty law cannot be severed from its other provisions so as to allow jury instructions that would comport with federal constitutional standards.

“Because the respective roles of the judge and jury are so complicated …, we are unable to discern a method by which to parse the statute so as to preserve it,” the court said, adding that any decision about reinstating the death penalty should be left to the General Assembly, where attempts by death penalty opponents to abolish capital punishment have repeatedly failed.

Gov. Jack Markell praised Tuesday’s court ruling, describing capital punishment as “an instrument of imperfect justice” that does not make society safer.

“While I would have supported abolishing the death penalty legislatively, it is my hope that today’s decision will mean that we never see another death sentence in our state,” Markell said in a prepared statement.

This decision comes at the same time that there is a bill on hold in the Delaware legislature seeking to bring the death penalty to an end, an effort that has ended in failure when it has been been tried over the past decade. This time, though, the legislature put the bill on hold to see what the State Supreme Court would do in this case. How the legislature reacts will be interesting, and will likely decide the fate of the death penalty in Delaware. Since the Court’s ruling struck the law down because of the manner it was imposed, the legislature could theoretically seek to change the law regarding the manner in which the penalty is imposed to address the issues that factor into the Court’s decision, If that were to happen, then this case would essentially become moot and it would be up to future defendants to challenge the new law under whatever provisions their attorneys might deem appropriate, a move that would effectively mean that the death penalty would be on hold in Delaware for the foreseeable future. As it stands, there have only been sixteen executions in the state since 1976, with the last taking place four years ago, so there has already been an effective moratorium in place for some time now. (Source) With the opportunity that the State Supreme Court has given them, the legislature could now theoretically let the death penalty die by deciding not to revise the law, which would leave the current law in place but, given the Court ruling, unenforceable. Alternatively, of course, state officials could seek to appeal the matter to the U.S. Supreme Court but it’s unclear if either the Democratic Governor or Democratic Attorney General will be inclined to do so or that the Supreme Court would be inclined to take the case given the fact that the Florida ruling on which this ruling is based was manifestly clear about what procedures are improper in imposing the death penalty and that the Court has been increasingly less inclined to take death penalty cases that raise essentially the same issues it has already dealt with in previous cases. So, unless the Supreme Court takes up this appeal and overturns the ruling at issue here, it’s likely that the death penalty is a nullity in yet another state.

This development follows a trend of recent cases that have either resulted in the death penalty being abolished or it being put on temporary hold due to issues regarding the way it is imposed, In many cases, of course, this de facto moratorium due to the fact that the drugs previously used to carry out executions are becoming increasingly difficult to obtain because drug companies are refusing to sell them to the states for use in executions. Additionally, the Court’s decision earlier this year in the aforementioned Florida case has had a real impact in the handful of states such as Delaware that have procedures similar to those that were struck down in that case. Just last year, Nebraska’s legislature became the first Republican dominated legislature in decades to abolish the death penalty. Finally, there does appear to be a change in public opinion on this issue that could signal a sea change down the road when it comes to capital punishment similar to what we’ve seen with regard to same-sex marriage and marijuana legalization. Just two years ago, for example, a Gallup poll showed for the first time that a majority of the public supported life without parole over the death penalty as a sentence. While support for the death penalty itself remains high, results like this suggest that, slowly but surely, public opinion is changing on this issue and that it won’t be long before execution is looked upon as an unnecessary anachronism.

Here’s the opinion:

Rauf v. Delaware by Doug Mataconis on Scribd

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. steve s says:

    Good. About time the US got a little closer to the 20th century.

  2. Michael says:

    I was surprised to see that the ruling came not because of the method used, but of the imposition of the penalty itself. Good for Delaware. It should never come down to the will of one man (Obama take heed). If a jury cannot agree to impose death, then life in prison it is.
    What does surprise me is the gnashing of teeth over the method used to end a convicts life. Electricity and lethal gas take a relatively long time to be effective. This is America. Sit them in a chair, put a target on their chest, and shoot them. It’s what we do shoot each other that is.

  3. Tyrell says:

    @steve s: How about Charles Manson ? Just imagine the mayhem if Manson escapes, far fetched as that may be. The media should have never given him those interviews – disgusting.

  4. Neil Hudelson says:


    Generally it is a bad idea to base civil rights and policy around what one could imagine.

    I could imagine a future wherein Trump calls on his followers to take arms against the government. Since I can imagine it, we should confiscate all guns, right?

  5. Tony W says:

    @Michael: I have never understood how death penalty advocates support lethal injection.

    If we’re going to be barbaric and let the government kill people legally, let’s at least admit that this is not a medical procedure but rather an execution. Public hangings, guillotines and firing squads should be the techniques used.

    After all, if policy is going stagnate in the 1800s then the way we deliver on that policy should match.

    Bring back the stockade!

  6. Michael says:

    @Tony W: Exactly. Not only should they be “reliable” forms of execution, but televised too. If you don’t want to see it, change the channel. Free market TV!

  7. steve s says:

    Tyrell says:
    Wednesday, August 3, 2016 at 12:58
    @steve s: How about Charles Manson ? Just imagine the mayhem if Manson escapes, far fetched as that may be.

    Well that’s why we had to execute him back in 1970. It’s not like we could have safely held him in prison for 46 years or something.

    Is there anything you RWNJs aren’t scared of?

  8. steve s says:
  9. bill says:

    might as well if you’re not going to use it- the endless appeals/delays just aren’t worth it. just let em kill each other off in the pen and stop treating them like humans if they’re in the for wanton killing.
    maybe bring back chain gangs and such- get something of value out of them for the money they cost us. oh, and “dnr” for all murderers!