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