The Death Penalty in Delaware: An Empirical Study

John Blume, Ted Eisenberg, Valerie Hans & Sheri Johnson Cornell Death Penalty Project, Cornell Law School CELS Conference – Fall 2008

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Why Study Delaware’s Death Penalty in the “Modern Era” (1977-2007)?

No previous empirical studies of Delaware’s death penalty.

It’s a small state, allowing for the possibility of examining every homicide case during the study period.

It has a high death sentencing rate – the third highest in the United States.

During this period, Delaware has used jury, judge and jury-judge sentencing schemes, offering the opportunity to contrast them.

Planned Phases of Project

Phase 1 – which we focus on here, examines all cases in which the a defendant was sentenced to death Phase 2 – will examine all cases which went to trial as death cases (death and life cases) (in progress, but near completion) Phase 3 – will examine all cases of death eligible homicides (in progress)

Phase 1 – Legal Framework for the “Modern Era” of Capital Sentencing in Delaware 1977 – Delaware enacted new death penalty law modeled on

Gregg v. Georgia

scheme, with bifurcated trial with a separate penalty phase, jury decision making, and appellate review  Jury were required to unanimously find the presence of at least one aggravator BRD  Jury were required to unanimously vote for death

Reducing the Jury’s Role

In a highly publicized 1991 case involving 4 out of town defendants who robbed a Brooks armored car and killed two guards, the jury convicted them of murder, but could not reach unanimous decisions to sentence any of the defendants to death.

The Delaware legislature quickly amended the death penalty statute to make the jury’s role “advisory” in death penalty sentencing

Judge Sentencing Scheme from 1991-2002

New approach featured judicial rather than jury decision making about sentence Jury voted on two matters  Presence of an aggravating circumstance?

 Did aggravating circumstances outweigh mitigating circumstances?

The jury determination did not have to be (and often was not) unanimous.

Jury votes were “advisory” to the judge, but who nonetheless had to give them “great weight”

Scheme since 2002

Delaware scheme was modified again in 2002 This modification required by

Ring v Arizona

, which mandated that the capital jury unanimously find beyond a reasonable doubt the presence of at least one aggravating factor (making the case eligible for death) The jury votes on the relative weight of aggravating and mitigating circumstances and this “opinion” is still “advisory” to the judge who decides the ultimate sentence.

Modern Era – Delaware Death Penalty Cases by the Numbers

45 individuals have been sentenced to death in Delaware under jury and judge schemes There are currently 19 individuals on death row.

14 death sentenced inmates have been executed.

JUDGE-JURY DIFFERENCES

Clear difference emerges between jury and judge sentencing  1977-91: 10 defendants sentenced to death by juries (3% death sentencing rate)  1991-present: 35 defendants sentenced to death by judges (8% death sentencing rate)

Delaware’s Death Sentencing Rate per 1000 Homicides, by Race of Defendant and Victim

180 160 140 120 100 80 60 40 20 0 178.57

25.56

Black Defendant 88.24

51.9

White Defendant Black Victim White Victim

How does Delaware compare to other states in death sentencing rates?

Black D-Black V Black D-White V White D-White V White D-Black V Delaware Georgia Indiana Maryland Nevada Pennsylvania South Carolina Virginia 25.5

4.5

5.6

2.4

24.9

17.7

2.9

3.6

178.5

99.2

42.3

52.2

101.1

48.6

67.8

64.5

51.9

41.7

21.6

14 37 22.2

27.1

18.3

88.2

21.4

0 7.3

12.5

11.9

50.3

23

Figure comparing death sentencing rates of Delaware and selected states

180 160 140 120 100 80 60 40 20 0 Delaware Nevada B/B B/W Georgia Pennsylvania W/W Indiana South Carolina W/B Maryland Virginia

LOCALE

Delaware has three counties.

   29 (66%) were sentenced to death in New Castle County.

13 ((29%) were sentenced to death in Kent County 3 (5%) were sentenced to death in Sussex County.

Sussex County, however, a) had more murders (183 v. 148) and b) has a smaller black population than Kent County.

  Kent County – 16% of the murders/29% of death sentences Sussex County – 19% of the murders/5% of the death sentences

DELAWARE’S CURRENT DEATH ROW

Of the 19 persons on death row (all male):  9 (47%) are black (41.7% nationally)  7 (37%) are white (45% nationally)  3 (16%) are Hispanic (11% nationally) The total non-white DR population is 64%.

 52.7% nationally

EXECUTIONS

There have been 14 executions in Delaware.

   7 (50%) were white (57% nationally) 6 (43%) were black (34% nationally) 1 (7%) was Native American (less than 1% nationally.

7 were from New Castle and 7 were from Kent County 4 (28%) were “volunteers” (12% nationally).

APPEALS AND ERROR RATES

The Delaware Supreme Court has decided 50 cases on direct appeal.

 The conviction was reversed in 5 cases.

   The sentence was reversed in 10 cases The United States Supreme Court reversed one other case in the direct appeal process The overall error rate on direct appeals is 32% 4 inmates prevailed in state post-conviction and 2 were successful in federal habeas corpus proceedings.

  The overall error rate is 44% The national rate of error (per Liebman et al) is 68%

ERROR RATES – CON’T

In cases where error was found, 68% of the individuals were subsequently resentenced to life imprisonment (or a term of years) More than 1/3 of all individuals sentenced to death in Delaware were subsequently resentenced to life imprisonment (or a term of years)

LIFE CASES

There have been 93 life verdicts (as opposed to 54 death verdicts)  63% of the cases that went to a penalty trial where the state was seeking the death penalty resulted in life sentences.

70 – New Castle County (29 death verdicts) 16 - Kent County (14 death verdicts) 7 - Sussex County (3 death verdicts)

LIFE CASES – JUDGE OR JURY

30 of the life cases were imposed by juries  As opposed to 10 death sentences  Death sentencing rate = 25% 63 of the life sentences were imposed by judges  As opposed to 35 death sentences  Death sentencing rate = 36%

More to come…..

Preliminary findings suggest the importance of systematic study Future analyses will explore and attempt to explain  High death sentencing rate relative to other states  Racial patterns in sentencing  Judge-jury decision making differences