The Death Penalty
in Delaware:
An Empirical Study
John Blume, Ted Eisenberg, Valerie Hans & Sheri
Johnson
Cornell Death Penalty Project, Cornell Law School
CELS Conference – Fall 2008
Why Study Delaware’s Death Penalty
in the “Modern Era” (1977-2007)?
1. No previous empirical studies of Delaware’s
death penalty.
2. It’s a small state, allowing for the possibility of
examining every homicide case during the
study period.
3. It has a high death sentencing rate – the third
highest in the United States.
4. During this period, Delaware has used jury,
judge and jury-judge sentencing schemes,
offering the opportunity to contrast them.
Planned Phases of Project
Phase 1 – which we focus on here,
examines all cases in which the a
defendant was sentenced to death
Phase 2 – will examine all cases which
went to trial as death cases (death and life
cases) (in progress, but near completion)
Phase 3 – will examine all cases of deatheligible homicides (in progress)
Phase 1 – Legal Framework for the “Modern
Era” of Capital Sentencing in Delaware
1977 – Delaware enacted new death
penalty law modeled on Gregg v. Georgia
scheme, with bifurcated trial with a
separate penalty phase, jury decision
making, and appellate review


Jury were required to unanimously find the
presence of at least one aggravator BRD
Jury were required to unanimously vote for
death
Reducing the Jury’s Role
In a highly publicized 1991 case involving
4 out of town defendants who robbed a
Brooks armored car and killed two guards,
the jury convicted them of murder, but
could not reach unanimous decisions to
sentence any of the defendants to death.
The Delaware legislature quickly amended
the death penalty statute to make the
jury’s role “advisory” in death penalty
sentencing
Judge Sentencing Scheme from
1991-2002
New approach featured judicial rather than jury
decision making about sentence
Jury voted on two matters


Presence of an aggravating circumstance?
Did aggravating circumstances outweigh mitigating
circumstances?
The jury determination did not have to be (and
often was not) unanimous.
Jury votes were “advisory” to the judge, but who
nonetheless had to give them “great weight”
Scheme since 2002
Delaware scheme was modified again in 2002
This modification required by Ring v Arizona,
which mandated that the capital jury
unanimously find beyond a reasonable doubt
the presence of at least one aggravating factor
(making the case eligible for death)
The jury votes on the relative weight of
aggravating and mitigating circumstances and
this “opinion” is still “advisory” to the judge who
decides the ultimate sentence.
Modern Era – Delaware Death
Penalty Cases by the Numbers
45 individuals have been sentenced to
death in Delaware under jury and judge
schemes
There are currently 19 individuals on death
row.
14 death sentenced inmates have been
executed.
JUDGE-JURY DIFFERENCES
Clear difference emerges between jury
and judge sentencing


1977-91: 10 defendants sentenced to death
by juries (3% death sentencing rate)
1991-present: 35 defendants sentenced to
death by judges (8% death sentencing rate)
Delaware’s Death Sentencing Rate per 1000
Homicides, by Race of Defendant and
Victim
180
160
140
120
100
80
60
40
20
0
178.57
88.24
51.9
25.56
Black
Defendant
White
Defendant
Black Victim
White Victim
How does Delaware compare to other
states in death sentencing rates?
Black D-Black V Black D-White V White D-White V White D-Black V
Delaware
Georgia
Indiana
Maryland
Nevada
Pennsylvania
South Carolina
Virginia
25.5
4.5
5.6
2.4
24.9
17.7
2.9
3.6
178.5
99.2
42.3
52.2
101.1
48.6
67.8
64.5
51.9
41.7
21.6
14
37
22.2
27.1
18.3
88.2
21.4
0
7.3
12.5
11.9
50.3
23
Figure comparing death sentencing rates of
Delaware and selected states
180
160
140
120
100
80
60
40
20
0
Delaware
Nevada
B/B
B/W
Georgia
Pennsylvania
W/W
Indiana
South Carolina
W/B
Maryland
Virginia
LOCALE
Delaware has three counties.



29 (66%) were sentenced to death in New Castle
County.
13 ((29%) were sentenced to death in Kent County
3 (5%) were sentenced to death in Sussex County.
Sussex County, however, a) had more murders
(183 v. 148) and b) has a smaller black
population than Kent County.


Kent County – 16% of the murders/29% of death
sentences
Sussex County – 19% of the murders/5% of the death
sentences
DELAWARE’S CURRENT DEATH
ROW
Of the 19 persons on death row (all male):



9 (47%) are black (41.7% nationally)
7 (37%) are white (45% nationally)
3 (16%) are Hispanic (11% nationally)
The total non-white DR population is 64%.

52.7% nationally
EXECUTIONS
There have been 14 executions in Delaware.



7 (50%) were white (57% nationally)
6 (43%) were black (34% nationally)
1 (7%) was Native American (less than 1% nationally.
7 were from New Castle and 7 were from Kent
County
4 (28%) were “volunteers” (12% nationally).
APPEALS AND ERROR RATES
The Delaware Supreme Court has decided 50
cases on direct appeal.




The conviction was reversed in 5 cases.
The sentence was reversed in 10 cases
The United States Supreme Court reversed one other
case in the direct appeal process
The overall error rate on direct appeals is 32%
4 inmates prevailed in state post-conviction and
2 were successful in federal habeas corpus
proceedings.


The overall error rate is 44%
The national rate of error (per Liebman et al) is 68%
ERROR RATES – CON’T
In cases where error was found, 68% of
the individuals were subsequently
resentenced to life imprisonment (or a
term of years)
More than 1/3 of all individuals sentenced
to death in Delaware were subsequently
resentenced to life imprisonment (or a
term of years)
LIFE CASES
There have been 93 life verdicts (as
opposed to 54 death verdicts)

63% of the cases that went to a penalty trial
where the state was seeking the death
penalty resulted in life sentences.
70 – New Castle County (29 death verdicts)
16 - Kent County (14 death verdicts)
7 - Sussex County (3 death verdicts)
LIFE CASES – JUDGE OR JURY
30 of the life cases were imposed by juries


As opposed to 10 death sentences
Death sentencing rate = 25%
63 of the life sentences were imposed by
judges


As opposed to 35 death sentences
Death sentencing rate = 36%
More to come…..
Preliminary findings suggest the
importance of systematic study
Future analyses will explore and attempt
to explain



High death sentencing rate relative to other
states
Racial patterns in sentencing
Judge-jury decision making differences