Death penalty repeal bill probably done for this year

Nationally, there’s been a slow but persistent drip, drip, drip of events large and small undermining support for the death penalty.

DNA testing has exonerated hundreds of inmates, including 18 serving on death row. Lethal drugs have become harder to obtain; executions have been botched. Awareness has grown about disparities in how the death penalty is applied.

In the past decade, five states have dropped the death penalty. For a time, it appeared Delaware might be the sixth.

Last March, in a dramatic 11-10 vote, the Delaware Senate passed a bill that would repeal the death penalty in Delaware.

It was a bipartisan vote. Supporters included Republicans Sen. Ernie Lopez of Lewes and Sen. F. Gary Simpson of Milford.

From the Senate it went to the House Judiciary Committee, which includes Rep. Steve Smyk, R-Milton.

And there it has stayed, bottled up, with little chance of coming to the floor for a vote before the General Assembly session officially ends June 30. The committee stands 6-5 against releasing the bill, meaning just one member would have to switch sides.

Technically, the House could vote to suspend rules and bypass the committee process. But House Speaker Pete Schwartzkopf, D-Rehoboth, doesn’t see that happening.

“We follow the committee process pretty closely,” he said. Also, according to Schwartzkopf, the votes aren’t there.

“I don’t know if they have the votes to pass it on the floor. I don’t think they do. However,” he said, “they have less votes to suspend rules to get it out of committee than they do to pass the bill.”

Schwartkopf said he knew of five representatives who would vote for the bill on the floor, but who wouldn’t vote to suspend the rules.

“It’s a very personal, very emotional issue and everybody’s been subject to an awful lot of pressure on this thing for the past four months and nobody’s budged yet. So I doubt anybody’s going to change their vote now,” he said.

Smyk agreed about the level of pressure. “There’s been a tremendous effort from those who want to repeal this,” he said. “It’s been a national effort, and they’ve got some local support.”

But he doesn’t plan to change his committee vote.

“I voted the way my constituents wanted me to,” Smyk said, “though the minority is pretty loud.”

He said he’s talked to people in his district and they don’t favor repeal. “Not just prison guards, but preachers as well,” he said. He said a vote in favor of repeal could even cost him the election this fall.

He may have a point. Smyk faces Democrat Marie Mayor for a rematch of the 2012 election. But this year’s contest also includes Donald Ayotte, a conservative candidate running as an Independent. If Ayotte were to peel away enough of Smyk’s conservative voters, it could swing the election.

But Smyk’s also a strong supporter himself. He sees problems with the death penalty in other states, but not in Delaware.

“Delaware’s judges have been a beacon, an example of a fantastic judicial system,” he said. “That’s something we should hold our head high on.

“If you take a look at how often Delaware employs the death sentence, compared to others states,” Smyk said, “other states seem to abuse this and it’s terrible the way they use it. And for those states, they should repeal it until they get to the point that it’s the last resort.”

I also have confidence in Delaware’s judges. And I’d like to think that we do better than other states in applying the death penalty.

But we’re not perfect. No state is. The Delaware Supreme Court recently overturned the murder conviction of Jermaine Wright. The court ruled that the state had improperly withheld evidence. That doesn’t mean Wright is innocent, but it does show our judicial system makes mistakes.

More difficult problems, however, lie elsewhere. And I don’t think they can be solved.

The wealthy and even the merely well-off, effectively, don’t face the death penalty. The legal talent they can afford will see to that.

Here’s another troubling disparity.

According to a 2012 study of the death penalty in Delaware conducted by the Cornell Law School, “Black defendants who kill white victims are more than six times as likely to receive the death penalty as are black defendants who kill black victims.

“Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death as are white defendants who kill white victims.” (See “The Delaware Death Penalty: An Empirical Study.”)

Delaware’s handling of capital cases may be better than other states, but it’s not only imperfect, it’s capricious. Which means the death penalty has to go.

Barring some extraordinary change, that won’t happen this year, but Kathleen MacRae, executive director for the ALCU of Delaware, said that her organization and its 29 coalition partners will be back again fighting for repeal.

Eventually, the logic and justice of their cause will overcome the opposition. The only question is when.