death penalty in Delaware

It's been more than a couple of years now since the trial of Thomas Capano, but the case continues to spring up as a subject for books, and in the newpapers, and on television. The former Delaware prosecutor's murder case continues to attract media attention. It was most recently seen on TV in March as the subject of the pilot episode for a series on the Learning Channel called Caught.

Today, the case is again in the newspapers as the US Supreme Court rejected an appeal in the case without comment.

It's likely that a new appeal will be brought by Tom Capano's attorneys arguing the constitutionality of a judicial death penalty decision, with a nonbinding recommendation by a jury. Should the jury have made the decision as to the sentence, and not the judge? Should the decision have been unanimous? The Supreme Court appeared to be holding off on ruling on the Capano case until a determination was made in the Ring v. Arizona case.

Though it's uncertain as to how the Ring ruling might affect Delaware capital cases, Delaware's legislators have been busy deciding how to rewrite Delaware's death penalty statute. The Delaware Senate has prepared and voted on a bill which is ready to be presented to the House of Representatives. A companion Delaware bill also followed that one through the Senate, in response to the Supreme Court decision in Atkins v. Virginia, and would prohibit the execution of defendants found to be mentally retarded.

The last day of Delaware's legislative sessions is Sunday, and it is possible that the House will wait until then to decide upon these bills. Are these two bills responding to the rulings of the U.S. Supreme Court too quickly? Is it necessary that they be decided now, before the legislature breaks?

Arguments have been made that the statutory process is being conducted without a sufficient understanding of the implications of the federal court's rulings. Yet, we had a capital murder case put on hold this last Tuesday because the trial judge felt that he couldn't go forward without more review being made of the Court's ruling in Ring.

A judicial solution would be to certify questions of law to the Delaware Supreme Court. That process could possibly take more than a year to resolve, and would likely cause any other capital cases to be stayed rather than go to trial. Will a new death penalty statute speed up the Delaware Supreme Court's review of Delaware's death penalty in light of the Ring decision? That's not certain either.

I like the idea of a special legislative session meeting this summer to decide upon the issue, rather than our representatives trying to make a decision in the last few days of the legislative season. Interestingly, that idea also surfaces in an editorial in the Wilmington News Journal which also presents an argument for abolishing the death penalty.