Posted: Jan. 28, 2016
By Celia Cohen
The death penalty in Delaware is probably in its death throes, but it is not dead yet.
The state House of Representatives could have done it in on Thursday, by going along with an earlier vote in the state Senate to repeal capital punishment, but the roll call came up short.
Still, the death sentence remains under legislative assault and legal challenge, and there is reason to think it might not be long for this state.
Serious elements of legislative, executive and judicial officialdom have come out against it.
The state Senate has voted twice, in 2013 and 2015, to do away with the death penalty, if only in each case by a bare majority of 11 votes in the 21-member chamber.
Jack Markell, the Democratic governor, has committed to signing a repeal bill into law, if the legislature sends him one.
Leo Strine Jr., the chief justice, has been promiscuous in speaking and writing about his opposition to the death penalty, even as he noted in 2015 in a Widener Law Review paper, "My job as a judge is not to apply the law faithfully only in cases where I personally favor the law."
Until now, the legislative and executive branches were carrying the debate, but this week, the judicial branch was drawn in, too, and what happens there could spill back into the legislature in a big way.
The new judicial front was opened because of the recent ruling from the U.S. Supreme Court, declaring the death penalty law in Florida unconstitutional. Delaware's law is not exactly like Florida's, but there are similarities, so it raised doubts, and the Superior Court, which handles capital cases, asked the state Supreme Court for direction.
While the courts ruminate, the state House could have made their deliberations moot, if it had voted Thursday for repeal, but it did not happen. The roll call in the 41-member chamber was 16-23 with two members absent.
The House debate was an unexpected advance all by itself, because the chamber was resisting a debate on the bill. It was confined to committee and only recently released, maybe because there really was no counter to the argument that a bill this consequential deserved a vote, or maybe because the opposition had figured out the votes were not there for it to pass.
The debate, which came on the last day before the legislature shut down until March for budget hearings, lasted about an hour and a half. Almost all of the speakers argued in favor of repeal -- a telltale sign they did not have the votes and were still trying to change some minds.
"It's a good day for me to have the bill on the floor," said J.J. Johnson, a Democratic state representative voting to strike down capital punishment. "I know the death penalty will be repealed. If not today, then sometime."
The House vote was a setback for the forces favoring repeal, but it was not the last word. This is because Kim Williams, a Democratic state representative who wants the death penalty repealed, voted "no" as a straw vote to set up a parliamentary maneuver.
Under the rules, someone who votes on the prevailing side -- meaning the "no" votes -- can ask for reconsideration for a new vote. This could happen as soon as the House returns in March, and everyone lives to fight another day.
Even if the House vote were to stand, there is another back-door way that could open for the legislature to kill the death penalty. It depends on what happens in the courts.
If the state Supreme Court decides the death penalty law as written is unconstitutional, it would mean the legislature would have to pass a revised, constitutional version for it to be reinstated. The odds of that happening are probably not good, now that the Senate has voted twice for repeal.
No new version, no death penalty.
So nothing is settled. As long as capital punishment is regarded as constitutional, nothing may ever be settled. There have been times Delaware did not have a death penalty, only to bring it back.
The death penalty never really dies.