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July 18, 2003
We have noted the enactment
of House Bill No. 287, an amendment to Delaware’s death penalty
statute, and the exchange of correspondence between Chief Justice E.
Norman Veasey and Attorney General Jane Brady.
The public nature of the
exchange between such high-ranking officials may obscure the most
critical issue in that exchange, namely the process by which
important legislation, with wide ranging legal and societal
ramifications, is enacted. (House Bill No. 287 was introduced and
passed in the last few days of the most recent legislative session,
largely under a suspension of normal rules.) An amendment to
Delaware’s death penalty statute may have several immediate
consequences. Some of those consequences could have been obviated
if the Attorney General’s bill had been discussed in its formative
stages with members of the public, the bar, and court personnel.
First, to the extent the
amendment purports to apply retroactively to pending prosecutions it
invites challenge by anyone subject to those pending prosecutions.
Resources to pay for indigent defendants are scarce to begin with.
Litigation by those subject to the legislation’s intended
retroactive effect could severely impact those resources, running an
unnecessary risk that other defendants may end up without their
constitutionally required assistance of counsel being promptly
provided. That consequence could have a direct effect on judicial
resources, as defense funds for indigents are part of the courts’
budget.
Second, the question of the
legislation’s intended retroactive effect could delay death penalty
prosecutions until the legality of the retroactive effect can be
tested. That prospect may have consequences similar to what
happened in Delaware last year when the General Assembly enacted
another amendment to the death penalty statute.
The Delaware State Bar
Association has committees and sections of lawyers who specialize in
the many different areas of the law. Our committees and sections
are often called upon by government agencies and legislators for
independent and technical review of proposed legislation. During
our review process we attempt to touch base with all constituencies
of the bar who we believe have professional expertise or interest in
the proposed legislation. If House Bill No. 287 had been considered
and debated in a more deliberative manner, before and after
introduction, the questions mentioned above might not now be hanging
over it.
The Bar Association believes
that the public interest would be better served if such important
legislation were enacted with more deliberation and public input
than was accorded House Bill No. 287. As the Justices of the
Supreme Court said in their Opinion to Governor Minner dated July
11, 2003, “(T)he death penalty statutes require delicate analysis
and careful drafting of interrelated provisions in light of the
matrix of federal and state jurisprudence.” The Chief Justice, as
the head of our court system, has a legitimate interest in changes
to the death penalty statute that would impact court resources or
would affect the orderly processing of capital cases. We believe
that is the real point of the Chief Justice’s comments on this
matter, and on that subject we wholeheartedly agree.
Charles S. McDowell
President, Delaware State Bar Association
Richard D. Kirk
Chair, Delaware State Bar Association Committee on Response to
Public Comment
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