DELAWARE House OKs sentencing reform bill, Apr 4, 2007

Wednesday, April 4, 2007
Delaware House OKs sentencing reform bill
By Drew Volturo, Delaware State News

DOVER — After a lengthy debate that pitted police officers and prosecutors against defense attorneys and retired judges, the state House of Representatives passed a bill Tuesday eliminating minimum mandatory sentencing for drug offenders.

House Bill 71, which passed 26-13 after a two-hour debate, would change mandatory prison sentences to presumptive terms left to the discretion of the sentencing judge.

Under existing state law, a judge must impose the minimum mandatory sentence provided in the statute. The presiding officer cannot weigh any mitigating factors to possibly lessen the prison term.

“Minimum mandatory sentencing transfers sentencing power from judges to the prosecuting attorneys,” said Edmund N. “Ned” Carpenter II, a former defense attorney and deputy attorney general and past president of the Delaware State Bar Association.

“It gives the prosecuting attorney the power to threaten the defendant if he doesn’t plead guilty to various charges.”

House Speaker Rep. Terry R. Spence, R-New Castle, said he sponsored HB 71 because the debate surrounding minimum mandatory sentencing has been brewing for several years but never made it to the House floor.

“Hearing both sides, I felt that the time has come this year for this issue to be fully discussed on the floor,” Rep. Spence said.

“The sentiment from the majority of the House was to put the final decision in a judge’s hands.”

But members of the law enforcement community, including the attorney general’s office and the Delaware Police Chiefs’ Council, said the sentencing statute applies mainly to the “worst of the worse,” and is an effective tool for them to use.

State Prosecutor Richard Andrews said of 6,300 drug arrests in 2005, minimum mandatory sentencing was only applied to 133 convicts.

“Mandatory sentencing is being handed out to people who rightly deserve to spend at least a couple years in prison,” Mr. Andrews said.

“By weakening the drug laws, our streets are going to become more violent and we will see more crime,” said Newport Police Chief Michael Capriglione, president of the Delaware Police Chief’s Council.

Dover Police Chief Jeffrey Horvath brought props with him to testify before the House Tuesday.

The chief, who has said numerous times that he believes 90 percent of all crimes are drug-related in some fashion, held up a baggie with 10 grams of crack cocaine, which sells for $500 on the streets.

“Almost all of the shootings in Dover are related to this,” Chief Horvath said. “This is a violent crime and my stats prove it.

“Mandatory sentencing makes it fair for everyone who can’t afford a (high-priced) attorney.”

Chief Horvath said police would “have to work a hell of a lot harder” if the bill passes because drug dealers would be on the streets quicker.

Retired Wilmington police officer Rep. Dennis P. Williams, D-Wilmington, said minimum mandatory sentencing provides a necessary tool for police to get additional information from suspects and often leads to bigger arrests.

“They put themselves in this position,” Rep. Williams said. “I don’t see the big issue here. This is just a lot of fanfare.

“It’s a bad piece of legislation.”

Former state Supreme Court justice Joseph T. Walsh said judges already have a great deal of discretion in sentencing when it comes to capital murder cases. The judge can go against a 12-0 recommendation for death.

Judges, Mr. Walsh said, take that responsibility seriously.

“In each of those situations, I held a person’s liberty literally in my hand,” Mr. Walsh said. “I had an obligation to impose a fair sentence, fair to the defendant and fair to society.

“It’s a very difficult balance. With the advent of minimum mandatory sentencing, there is no balance. The focus is entirely on the offense.”

A similar measure died in the House last year when the chamber did not act on it.

Opponents to the proposal have noted that the General Assembly approved a bill a few years ago that reduced mandatory minimum sentences for lesser drug crimes, and that there’s no need for further action.

That 2003 law increased minimum mandatory sentences for violent crimes such as manslaughter, but lowered minimum terms for some drug offenses and increased the minimum weight of cocaine needed to establish the crime of trafficking from 5 grams to 10 grams.

The actual vote in the House Tuesday was delayed by about 20 minutes when legislators and attorneys couldn’t agree on how many votes were needed for passage.

The chamber typically has 41 members, which means that it would take 21 votes to pass most legislation.

But there currently are two vacancies, which raised the issue of whether it would take only 20 votes to clear the House.

Four House attorneys split in their interpretation of state law, so acting speaker Rep. William A. Oberle Jr., R-Newark, decided it would take 21 votes.

In the end, it didn’t matter, as HB 71 got 26 votes in favor.

The bill goes to the Senate for consideration.

Gov. Ruth Ann Minner said she is receptive to the idea of eliminating minimum mandatory sentencing but needs to see the final version of the legislation before deciding whether to sign it.

“We’ll see how it comes to us,” Gov. Minner said. “It has three amendments attached to it already.”

Post your opinions in the Public Issues Forum at newszap.com

Staff writer Drew Volturo

can be reached at 741-8296

or dvolturo@newszap.com