Delaware State News
DOVER — Questions of how the three branches of Delaware government should react and interact boiled to the surface last week when Attorney General M. Jane Brady announced that at least 200 convicted murderers, rapists and kidnappers would be eligible for release because of a recent state Supreme Court ruling.
Ms. Brady cited a Nov. 23, 2004, Supreme Court decision that said some life sentences that were handed down for crimes committed before June 30, 1990, should be considered 45-year terms instead of lasting the "natural'' life of the offender.
"Now the Delaware Supreme Court has interpreted the law to mean that life isn't life,'' Ms. Brady said. "They're saying it's 45 years and that a 45-year sentence can be reduced by good time credit.
"The practical effect (will) reduce these life sentences to as little as 26 years, despite denial of parole.''
Constitutional?
Ms. Brady's announcement raised almost immediate reaction from House Majority Leader Rep. Wayne A. Smith, R-Wilmington, who vowed corrective action in the state legislature.
"We can't loose all these dangerous criminals on the people of Delaware,'' he said. "I think it is constitutionally obscene to have the court interpret a legislative action and then say, ‘Here's what you should have done. This is a travesty.''
Rep. Smith launched House Bill 31, which declared the Supreme Court ruling "null and void.'' The measure garnered swift approval in both the House and Senate last week and was shipped to Gov. Ruth Ann Minner for her signature.
Gregory B. Patterson, a spokesman for the governor, said she is seeking opinions from her legal counsel as to the validity of the bill before deciding whether to sign it or veto it.
Under Delaware law, Gov. Minner has 10 business days — until Feb. 8 — to either approve or reject HB 31. If she fails to sign it, it becomes law.
Several legal experts said that would be a problem.
"I find the whole thing amazing,'' said Stephen E. Henderson, a professor of criminal law and criminal procedures at Widener University School of Law.
"I think I did a double take when I heard about it. I couldn't believe it.
"Unfortunately, it's also rather serious. What the legislature has done is blatantly unconstitutional. We are a nation of laws. They completely disregarded that with this legislation.''
Erwin Chemerinsky, who teaches criminal law and constitutional law at Duke University School of Law, agreed.
"It's clearly unconstitutional,'' he said. "It is a violation of the U.S. Constitution that says states are forbidden to pass any ex post facto (after the fact) law that increases punishment for a crime after it was committed.''
The Evans case
The Supreme Court based its decision on the case of Ward T. Evans, an inmate who was convicted Sept. 29, 1982, of first-degree rape and sentenced to life in prison with the possibility of parole.
Although Evans was denied parole three times between 1993-99, he filed a motion with Kent County Superior Court on Jan. 8, 2004, claiming his sentence was illegal.
According to court documents, Evans argued that under the conditional release clause in the Delaware Code, he was entitled to have a release date calculated as if his life sentence was a 45-year term.
The Superior Court denied Evans' motion, so he appealed to the state Supreme Court.
The high court agreed to hear Evans' appeal, noting that the case presented "issues of statutory interpretation,'' which the court said it would be reviewing for the first time.
In its ruling, the court agreed with Evans that his sentence, as applied by the Department of Correction, was illegal because it did not provide a conditional release date.
According to the justices, DOC listed Evans' maximum release date as "death'' and his maximum sentence, less good time, as "life.''
"Evans (argued) that the conditional release statute incorporates the definition of a life sentence that is set forth in the parole statute, and that under that latter definition, his life sentence must be fixed as a 45-year term for purposes of calculating his conditional release date,'' the court said.
The court said Evans was correct because one section of the Delaware Code defined a life sentence as "a fixed term of 45 years.''
Another section, meanwhile, said an inmate is entitled to conditional release when a maximum sentence ends, less any merit/good time credits earned.
"As such, (Evans') sentence is illegal because Evans' maximum release date does not reflect (a) 45-year term,'' the court said.
The court said the ruling would not apply to crimes committed after June 30, 1990, when Delaware's Truth-in-Sentencing Act took effect, because the act eliminated good time credits for inmates serving life sentences for committing Class A felonies. A life sentence would thus be a "natural'' life sentence.
Grandstanding?
Mr. Chemerinsky said the high court's ruling is clear and cannot be contested.
"The Delaware Supreme Court has clearly determined what the punishment in the Evans case should be,'' he said. "Now the Delaware legislature is extending that sentence. We have a separation of powers in this country.
"The law is clear. A legislature cannot overturn a court decision. I would call this political grandstanding by the legislature.''
Mr. Henderson said that if HB 31 were to become law, it would be struck down quickly in federal court.
"Delaware will have proved that it does not understand the Constitution,'' he said. "It will be up to the federal courts to reverse it. The U.S. Supreme Court would certainly reverse it.''
Rep. Smith said he stands by HB 31 and thinks Gov. Minner will too.
"I think she'll sign it,'' he said. "The bottom line is that she's worried, as we all are. We all share the desire to keep 200 of the baddest of the bad behind bars and not put them out on the street.
"I can't imagine that Gov. Minner would want to take the risk of one of these guys killing somebody or causing somebody bodily harm.''
Rep. Smith said he's unfazed by criticism from the legal community.
"I'm not surprised law professors or lawyers who want to become judges would come to that opinion,'' he said. "This is an assumed power of the courts. What we have here is a constitutional conflict rather than a constitutional violation.
"Basically, the Supreme Court blew it. I would argue that the Supreme Court overstepped its bounds. They essentially wrote a new law with this decision. Writing laws is our job.''
Rep. Smith said he sponsored HB 31 willingly and noted many colleagues from both chambers stepped forward to support it.
"I saw a duty here,'' he said. "I think we have two main concerns. One is to protect the public; that goes without saying. The second is to say to the courts, ‘You do not have a duty to re-write the laws of the state of Delaware.'
"I see this as an opportunity to reclaim ground taken over the years by overzealous judges and overzealous courts.''
Is the sky falling?
Delaware's chief public defender, Lawrence M. Sullivan, with 36 years on the job and six more just approved in a Senate confirmation hearing, said he knows something about laws and how they should b applied.
"To my knowledge, that sentencing law (in the Delaware Code) that was interpreted by the Supreme Court was in effect long before the current members of the state legislature were elected,'' he said.
"This was going to happen eventually. The law is the law. The justices just interpret the law. If a lawyer gave legislators advice to pass this bill, you've got to question that lawyer's qualifications.''
Mr. Sullivan said he's confident Gov. Minner will veto HB 31.
He also took a shot at Ms. Brady for stirring things up.
"This isn't the first time the attorney general has gotten the legislature into something like this,'' he said. "This is Jane Brady saying the sky is falling.''
Mr. Henderson was more critical.
"To see the attorney general maligning the court is a damaging and disturbing thing,'' he said. "There never had to be this public hysteria over this. Hysteria is driving this now, not good, common sense.''
Ms. Brady said Mr. Henderson based his opinion on false information reported in the media.
"I have not maligned the court in anything I've said or done,'' she said. "We are pursuing every legal avenue we can to keep these offenders in jail because they are the worst offenders we have in jail — by definition of their sentences, which is life imprisonment.
"Everyone for decades, and that includes prosecutors, judges, the Board of Parole, the Board of Pardons, and victims believed these were life sentences.
"To the woman who was raped in her home, whose offender has been confined in jail serving a life sentence and who was told he's going to be continuously in jail but now finds out he's getting out, what about that woman?
"Now she's going to be looking for another place to live. That's what one victim told us.
"I have brought this to the public's attention because we can't even locate all the victims to tell them about their cases — it's been at least 15 years since the last one of these offenders has been sentenced.''
Ms. Brady said the sky is not in danger of falling.
"What I have said are the facts,'' she said.
"The public is the one that realizes the sky is falling. The sky is not
Reprinted with permisson from newszap.com
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