Delaware prosecutors are holding out the possibility of seeking the death penalty against inmates charged in a deadly prison riot, even though the state does not currently allow capital punishment.
Eighteen prisoners have been indicted for their alleged roles in the February riot. Sixteen, including some already serving time for murder, are charged with first-degree murder in the death of correctional officer Steven Floyd.
In a letter last week, prosecutors informed Judge William C. Carpenter Jr., who is presiding over the case, that if lawmakers vote to reinstate the death penalty, prosecutors reserve the right to try to apply it to one or more defendants.
The state Supreme Court declared Delaware's death penalty law unconstitutional last year because it allowed judges too much discretion and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution. That ruling came after the U.S. Supreme Court struck down Florida's death sentencing law, which was similar to Delaware's.
In their letter, prosecutors pointed out that the killing of a prison employee in the performance of his duties is a specified aggravating factor in Delaware's death penalty statute, which remains on the books despite last year's court ruling.
Based on Floyd's position, prosecutors wrote, "all identified defendants would be eligible for a sentence of death."
At the same time, prosecutors acknowledged that the retroactive application of a revised death penalty statute could face significant legal hurdles.
"The state acknowledges that there may be good faith disagreement and litigation over such an application, but it provides this correspondence to the court and defendants to ensure that all interested parties are on notice of this stated purpose," the letter reads.
Democratic Attorney General Matt Denn, through a spokesman, declined to comment Thursday.
Chief public defender Brendan O'Neill was less circumspect.
"This attempt by the state to reserve a nonexistent 'right' to seek death sentences is not supported by law," O'Neill said in an emailed statement. "It is an ill-conceived, legally unfounded proposal that will create unnecessary legal, practical, logistical and financial problems. Quite simply, it's a waste of money and time for everybody involved."
Amid the outcry over the prison riot and the fatal shooting of a state trooper in April, House lawmakers in May passed a revised death penalty statute that addresses the constitutional infirmities noted in the state and federal court rulings by requiring unanimous jury approval. The Senate never acted on the bill.
Democratic Gov. John Carney has said he supports the state Supreme Court ruling declaring Delaware's death penalty law unconstitutional, but he hasn't taken a stand on any specific legislation to reinstate capital punishment, nor has he ruled out supporting the death penalty for people convicted of killing law enforcers.
A key question for the courts in deciding whether a revised death penalty law could be applied retroactively is whether the revisions to the existing statute are substantive, or merely procedural.
Delaware's Supreme Court has repeatedly upheld the application of "procedural" revisions to the state's capital punishment law, while warning that retroactive application of a law that "increased the quantum of a defendant's punishment," would be "manifestly prohibited" by the ex post facto clause of the Constitution.
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