DOVER — Delaware’s criminal code, some say, has grown unwieldy.
Members of the legislature, criminal justice system and various nonprofits believe the list of crimes and punishments has become too long and complicated over the years.
The code also can be overly harsh, focused on punishment rather than rehabilitation, justice advocates argue.
They say they want a system that is smarter, not tougher.
Chief Justice Leo Strine
In 2014, Chief Justice Leo Strine launched a committee designed to “examine causes of racial disparity in the criminal justice system and propose ways to reduce those disparities,” according to the Delaware courts’ website.
Composed of lawyers, community leaders and members of the public, the Access to Justice Commission was formed to provide recommendations for changes in the legal framework. A subcommittee on racial issues heard testimony from citizens up and down the state last year.
Speaking to a receptive audience at a League of Women Voters’ event Wednesday, Chief Justice Strine expanded on changes he would like to see, including eliminating “nuisance bail.”
“If I could wave a magic wand, I would eliminate all bail under $100,000 tomorrow,” he said. “Why? Because if you’re setting a bail lower than $100,000 you’re basically making a statement that you believe if that person can post that kind of money they can be fit in the community.
“So if you’re setting that, and the only reason the person’s not in the community is they can’t pay that, but it’s even more shocking. … It feels safe to say that a majority of the bail is actually less than $10,000. A majority of the bail may be less than $5,000. Many of these people, if they had $5,000, would not have committed a crime.”
Opponents, on the other hand, counter that bail ensures defendants do not miss their court dates.
Wide-scale change
The chief justice seeks to go further, to a broader goal: revamping the criminal justice system as a whole.
He has been outspoken about what he sees as inequity in regard to race, calling the United States’ treatment of black men and women its “biggest stain.” It’s a bell Chief Justice Strine has been ringing for a while: In February 2015, speaking before the General Assembly’s budget committee, he referenced statistics that he said showed black people in Delaware are disproportionately arrested and sentenced.
While some lawmakers and activists have made similar comments, and while Gov. Jack Markell and Attorney General Matthew Denn — both Democrats — have promoted improving “fairness” in the system, such outspoken statements from the head of the judicial branch are unusual.
But those comments just scratch the surface. His push is just part of a larger movement in Delaware and other states toward greater leniency.
“People are starting to wake up and realize that we’re spending way too much when it comes to incarcerating our own people,” activist Eugene Young said.
Mr. Young, the advocacy director for the Delaware Center for Justice and an attendee at Chief Justice Strine’s speech, agreed Delaware is taking steps toward a system more based on rehabilitation.
The General Assembly has picked up certain parts of that, with some members enthusiastically pushing for changes in sentencing.
Last year, lawmakers passed along party lines a bill decriminalizing possession of small amounts of marijuana, and Thursday, the Senate passed legislation changing the state’s habitual offender provision by lowering mandatory minimum sentences.
“Albert Einstein once said that the definition of insanity is doing the same thing over and over and expecting different results. There’s no better example of that than the criminal justice policies of the past 30 years. The ‘get tough on crime’ policies of the 1980s and 1990s have done nothing to reduce crime and in fact have led to higher recidivism rates,” Sen. Karen Peterson, D-Stanton, said on the floor Thursday.
Sen. Peterson, one of the leaders in the legislature in promoting rehabilitation, was the lead sponsor of a measure to end capital punishment for convicted murderers, although the bill was defeated in the House.
But not everyone believes the changes are good. To opponents, the movement will lead to increased violence, with less emphasis placed on punishment.
Police and correctional officers lobbied against abolition of the death penalty, arguing it works as a deterrent and is an effective tool to rid the world of the very worst offenders.
“The death penalty is reserved for the most shocking crimes against real people, people in our society and our community, people that we know,” Lewes Police Chief Jeffrey Horvath said in a March 2015 committee hearing. “These are not minimal crimes.”
Sen. Colin Bonini, R-Dover, has objected fiercely to some of the changes, including alterations to the state’s habitual offender statute.
“If the answer is releasing multi-time felons, we are not asking the right questions,” he said shortly before Thursday’s vote.
Delaware deserves better, he said, adding that public safety needs to be put first. He also took exception to testimony at a December public forum of racial bias in the system and disputed claims that people of color and few resources are singled out for punishment.
Crime and punishment
Supporters of changes believe they can both build a better justice system and avoid compromising public safety.
To them, the fact the United States is among the world leaders in incarceration rate indicates a problem that must be addressed.
“Folks are going to come back to our communities,” Robert Coupe, commissioner of the Department of Correction, said Wednesday after the chief justice’s speech. “What’s our best opportunity to improve them as an individual, to meet their needs so that when they go back to the community we have a higher chance for success?”
By providing more services in prison, such as education, job training and substance abuse treatment, the state can not only reduce recidivism, he said, it can save money — one of the issues politicians from both parties can eagerly support.
Chief Justice Strine, Commissioner Coupe and Sen. Peterson are among those supporting giving judges more discretion.
In a similar vein, the Department of Correction has established a pilot program where prisoners can take an assessment that identifies their “needs,” Commissioner Coupe said.
The agency can then provide personalized care, creating a system that still seeks to reform people but is less punitive.
But the thought the state is being soft on crime frustrates many.
“We have a large recidivism issue,” Sen. David Lawson, R-Marydel, a former police officer, said in response to a comment from Wilmington police Chief Bobby Cummings in a December budget hearing. “It’s repeat offenders, they’re not being prosecuted, they’re not being locked up and these are the main folks that are causing the problem. He had to be politically correct. I don’t.
“And this is the issue. And until we get the prosecution and these people put away, we would continue to put our cops’ lives in danger, we will continue to put our people in Wilmington in danger. This is not a police function, this is a prosecutor function and it is failing miserably.”
Much of the disagreement falls along party lines.
While few, if any, are opposed to making a criminal justice system that works more efficiently, there is also some pushback on claims some take as fact.
Camden Police Chief William Bryson, chairman of the Delaware Police Chiefs’ Council, disputes notions of racial bias. His 35 years as a police officer have not shown any unfair encounters, he said last year.
“If a suspect turns out to be black, they arrest a black person. If the suspect is white, they arrest a white person,” he said.
Others, however, claim that the statistics paint a very clear picture.
According to a report from the Delaware Center for Justice and Metropolitan Wilmington Urban League, two left-leaning organizations, Delaware’s prison population is about 64 percent black, while its overall population is about 22 percent black.
Sen. Christopher Coons, D-Del., cited those statistics in a letter published online last week, writing of what he sees as the need for “sensible reforms.”
Much of the state’s crime, law enforcement officials and legislators have said, can be traced back to drugs. Many people agree that improving the economy, particularly in Wilmington, would reduce the number of people turning to crime out of desperation.
“A lot of these folks I don’t think necessarily have an underlying substance abuse problem, they have an economic problem,” Chief Justice Strine said.
Lawmakers proposed editing the criminal code in 2014 to remove overlapping crimes and sentences judged to be unduly harsh. The Access to Justice Commission likely will produce a formal report of its findings within six months, Chief Justice Strine said.
After that, more public hearings will be held, and the chief justice hopes lawmakers can then move toward introducing legislation to trim the code.
That dovetails with Access to Justice’s goal.
“The mandate is very clear: Where you can improve fairness without compromising public safety,” he said.