Before the July 29th execution of Robert Jackson III, Delaware’s most recent execution was in 2005. Prior to that, the state had gone three years without carrying out the penalty of death by lethal injection. In the 1990s, the First State put ten condemned prisoners to death.
Now that Jackson’s execution has been carried out, the methodology of lethal injection, the fairness and effect of the death penalty, and its costs are all under examination.
Debating the Fairness and Effect of Delaware’s Death Penalty
Jackson had been on death row for nearly 18 years after being found guilty of killing 47-year-old Elizabeth Girardi with an ax. Girardi encountered Jackson during a burglary at her home in Hockessin. After a judge set the date for Jackson’s execution earlier this year, numerous appeals and court filings were made at the state and federal levels. Just a few hours after his appeals ran out, witnesses say Jackson was strapped to a gurney and given a three-drug lethal injection. He was pronounced dead at 12:12 a.m.
The Atlantic Center for Capital Representation in Philadelphia was involved in the Jackson case. The nonprofit center offers legal assistance and consultation to defense teams actively representing defendants who face the death penalty. Its Executive Director, Marc Bookman called Jackson’s execution a “disappointing” outcome based on the evidence that made a case for Jackson’s innocence. Some of it was in a transcript that remained sealed for 14 years.
Moments before his execution, Jackson said he was not the one who killed Elizabeth Girardi. His legal teams were also unsuccessful in challenging the state’s change of protocol in carrying out a lethal injection – specifically the replacement of one drug in the three-drug process.
“In the last month the state of Delaware changed their own protocol. They substituted one drug for another after five years of litigation on the first drug,” Bookman said. During the appeals, Jackson’s lawyer contended the replacement drug’s effects were unpredictable in terms of inducing unconsciousness and protecting the inmate from experiencing pain and suffering at the time of execution.
Related story: Learn more about the history of death penalty in Delaware here.
Delaware Citizens Opposed to the Death Penalty organizes vigils and other activities each time an execution draws near. The organization formed in 1992 at the start of the modern era of capital punishment in the First State. Several of its members protested in the pouring rain outside of the state prison near Smyrna on the night Jackson was executed.
“In terms of calling it ‘justice,’ I think we’re doing is actually becoming more like the people we’re condemning when we seek to do violence as a solution,” said Kevin O’Connell, a local attorney who is one of the founding members of Delaware Citizens Opposed to the Death Penalty. O’Connell also said there are no definitive studies that show capital punishment is a deterrent to others who may consider violent crime.
“I can say anecdotally based on 27 years of representing defendants in the criminal justice system, I would say it’s the rare client of mine that’s ever really thought about the punishment when they considered doing a crime,” O’Connell added. “It’s usually a person who’s not even thinking about getting caught.”
Death Penalty in Delaware
Kevin O'Connell, co-founder of Delaware Citizens Opposed to the Death Penalty
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Years upon years of appeals after a death sentence also work against capital punishment as a deterrent, according to Widener Law School Associate Professor Jules Epstein. “There is no question that deterrence is reduced when there’s such a long time,” Epstein said. He added that even preparing for trial in a death penalty case takes much longer.
“It’s not just the appeals,” Epstein said.
Death penalty opponents are joined in their cause by the American Civil Liberties Union (ACLU). “We believe it is one of the most egregious violations of civil liberties that the government can impose,” ACLU Delaware Executive Director Kathleen McRae said. “We also believe that it’s contrary to the Constitution of the United States because it is cruel and unusual punishment.”
While the ACLU in Delaware will not legally represent inmates, McRae said the organization will be active with community education and public policy on the death penalty. “There’s very much a movement to examine this as a public policy choice and to move away from it,” she added.
Related: Examine the portion of the Delaware Code relating to capital cases here.
Seeking the death penalty is not something prosecutors take lightly. Attorney General Beau Biden has called it “one of the most important decisions an Attorney General makes.” The Delaware Attorney General’s office says the Death Penalty Review Committee reviews all facts presented by prosecutors in cases deemed eligible for capital punishment. The committee’s members include the chief state prosecutor, the three county prosecutors, and the chief of appeals. After reviewing aggravating and mitigating factors, the committee through the state prosecutor makes a recommendation to the Attorney General. Such decisions are made well in advance of a trial to prepare the courts, the defendant and the legal teams.
Wilmington-based attorney Peter Letang is well versed in the process. The former deputy state attorney general and chief prosecutor for New Castle County led the team that prosecuted Steven Brian Pennell, who in 1992 became the first inmate executed in Delaware since 1946.
“The way that the matters in Delaware are handled, both with the appointment of counsel and through the appellate process, we have a system that has in place all kinds of protections and automatic appeals,” Letang said. “Delaware’s very cautious about these things and I think that’s appropriate.”
Perspectives on the death penalty's future in Delaware
Defense attorney and former state deputy attorney general Peter Letang says death penalty cases in Delaware are very thoroughly evaluated.
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Atlantic Center for Capital Representation Exec. Director Marc Bookman does not believe there will be a rush to carry out executions in Delaware
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Atlantic Center for Capital Representation Exec. Director Marc Bookman explains why he believes the death penalty is not useful or needed
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Widener University Law School Assoc. Professor Jules Epstein outlines what issues could lead to an effort to abolish the death penalty in Delaware.
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Widener University Law School Assoc. Professor Jules Epstein says bringing a capital case to fruition takes a lot of time, energy and money.
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High Cost May Affect Future of Delaware’s Death Penalty
Although Delaware may move forward with its scheduled executions, some believe the First State may follow the lead of several other states where the death penalty has either already been or is in the process of being repealed.
“What is undeniably true, based on every study that’s been done, every reliable study, is that having a death penalty costs more than having life without parole,” Epstein said.
Citing one estimate of the high cost of proceeding with a death penalty case, Delaware Pacem in Terris Executive Director Sally Milbury-Steen said “I would rather have $3,000,000 going towards picking up cold cases that haven’t been solved, helping victims of violent crime, providing jobs, education, and cops on the street to prevent crime.”
Will Delaware’s first execution in more than five years usher in a new wave of executions in Delaware, even if a repeal movement starts to take shape? Bookman doesn’t necessarily think so.
“The trend is clearly down for sentences and for executions, and I think it will continue to go down,” Bookman said. “I think one of the main reasons aside from any moral issues, aside from any innocence issues, aside from race discrimination, aside from bad lawyering at the beginning, I think one of the main reasons we’re going to start looking away from this is the extreme cost of the death penalty.”
“I don’t necessarily think you’re going to find a majority in the General Assembly who will do it for moral reasons, for fairness reasons,” O’Connell said. “Ultimately I think it will come down to cost savings. They’ll realize this is too expensive a punishment for us to continue to endorse when we’re really not getting any bang for our buck.”