By a 3-2 margin, the Delaware Supreme Court has declared unconstitutional the state’s death penalty law, because it allows a presiding judge to disregard a jury’s recommendation on whether the death penalty should be imposed. The state’s high court held that violates the Sixth Amendment’s right to a jury trial.

The Delaware ruling follows the U.S. Supreme Court’s most recent ruling on capital punishment, Hurst v. Florida which in January held, by an 8-1 margin, that a similar Florida law was unconstitutional, since the Sixth Amendment requires juries, not judges, be the ultimate decision-makers on a criminal defendant’s guilt and punishment.

The 148-page Delaware decision, released August 1, came in a challenge to the states law on deliberations in capital punishment cases. The challenge was brought on behalf of Benjamin Rauf, a Temple Law School graduate accused of murdering a classmate.

Before the Supreme Courts Hurst decision, Florida allowed executions when a separate proceeding after conviction found the death sentence justified. In that hearing, the jury provided an advisory sentence, with only a majority vote needed to recommend capital punishment, but the sentencing judge could accept or reject the jurys advice. After Hursts trial, the jury recommended the death penalty by a 7-5 margin.

After the Supreme Court invalidated Floridas procedures, that state suspended executions, leaving up in the air the fate of nearly 400 Death Row inmates in the state, while the state legislature sought to revise state law to address the Supreme Courts objections.

In March, the legislature passed, and Gov. Rick Scott signed, a bill which removed a sentencing judges ability to overturn a jurys recommendation on the death penalty, and raised the required vote for a jury calling for the death sentence from a simple majority to at least 10-2 in favor.

Of the 31 states allowing death sentences, Alabama was the only state besides Delaware and Florida that gave judges, rather than juries, the final decision on the death penalty. Shortly after handing down the Hurst decision, an Alabama inmate claimed that the states death penalty deliberation procedures had the same flaw as did the Florida law.

Since then, at least one Alabama judge has found the states law unconstitutional, and – if not resolved by state courts – the issue could make its way to the U.S. Supreme Court. Florida, despite its revamped death penalty deliberation law, could also find itself defending the new statute before the Supreme Court. The Hurst decision did not address the constitutionality of allowing a less than unanimous jury to hand down a death sentence, but opponents of capital punishment have long wanted to interest the Supreme Court in taking up that issue.

In addition, two of the Supreme Court’s current eight members have written in favor of taking up the question of whether the death sentence inherently violates the Eighth Amendment’s ban on cruel and unusual punishment.

And as public opinion polls show ever-dwindling majorities supporting capital punishment, for the first time ever, the Democratic Party’s national platform this year pledges to abolish capital punishment.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).