- District 15
This Act, known as the James Johnson Sentencing Reform Act, named for Representative JJ Johnson, makes significant changes to the sentencing laws in Delaware. Section 1. This section strikes most drug crimes from the list of violent felonies. This change recognizes that treating drug crimes in every instance as a violent crime is unnecessary as it increases the range of penalties and the presumptive sentence. However, the highest level of drug dealing will remain on the violent felony list since those offenders are most likely high quantity drug dealers or those at the top of a distribution pyramid. Section 2. This section makes changes to the sentence modification section of habitual criminal law to conform to current practice. The Superior Court has enacted court rules and procedures, and this section simply removes portions of the statute that have become superfluous due to the Court’s rules and procedures. Section 3. In 1989, Delaware abolished parole. Since then, there has been essentially no functioning mechanism to release an offender from Level V prior to expiration of his sentence, other than good time credit. While the current provisions of § 4217 of Title 11 have been in place since 1989, very few offenders are reviewed by the Board of Parole and the Courts each year. Under the current statutory scheme, the Department of Correction must initiate any and all applications, which then have to receive approval from the Board of Parole before finally being ruled upon by the Court. This section overhauls § 4217. It provides a functioning mechanism for the modification of the sentences of offenders who are old, sick, or have demonstrated extraordinary rehabilitation. Under this revision, a modification can only be granted on the basis of compassionate relief due to serious medical illness or infirmity, good cause, or prison overcrowding. Good cause means the offender has shown by conduct and attitude while in custody that risk of offending has diminished as evidenced by the administration of a professional accepted risk assessment instrument. Serious medical illness or infirmity includes the offenders who have a progressive and incurable illness that is expected to result in death within 2 years, a persistent or progressive illness that impedes the offender’s mental or physical capacities which significantly diminishes quality of life and requires a complexity or level of care that cannot be provided in a correctional setting, or a disease or condition where the offender is too ill or cognitively impaired to participate in rehabilitation or be aware of punishment, and the level of care needed for the offender cannot be provided in a correctional setting. Only certain offenders would be eligible for a modification of sentence under good cause. First, an offender has to meet certain eligibility requirements which are: (1) Have served 20 years at Level V; or (2) Be over 50 and have served 10 years. Good time credit cannot be used to determine eligibility. Second, the offender cannot be serving a sentence for specific crimes, namely the most serious and most sexual offenses. Once an offender is eligible, the Department of Correction determines whether that offender meets the requirement of good cause. If the offender does, the Department will file a petition in the Superior Court on the offender’s behalf. If the Department determines that the offender does not satisfy the requirement of good cause, the Department must put its decision in writing including the reason why. At that point, the offender can file a petition in Court, but must include the Department’s reasons for denying the offender’s request for relief. Once a petition is filed, the Court must appoint counsel for the offender’s first petition. There is no right to counsel on any subsequent petition. The petition must include notice to the Department of Justice so that notification can be made to any victims who may wish to provide input to the Court. In deciding the petition, the Court may modify the sentence, but only if the Court finds that the eligibility requirements are met, there is a suitable transition plan for the offender, and evidence has been presented showing that the offender poses a low risk to public safety by a modification. The Court may hold a hearing, request additional information or documentation, or deny the petition. If the Court denies the request, the offender may not file a subsequent petition for a period of 3 years unless otherwise ordered by the Court. Section 4. This section removes certain statutory impediments to becoming eligible for a sentence modification pursuant to § 4217. These include treatment and rehabilitation programs, education programs, and work programs. The reason for this is that many offenders cannot complete these programs, through no fault of their own, but rather because of their classification or learning disabilities. While this section removes the statutory impediments, the failure to complete required programs can be used by the Department to determine whether an offender meets the good cause standard under §4217. In addition, the Department can utilize internal disciplinary measures for offenders who refuse to complete programs. Section 5. This section repeals the provisions of Title 11 that created the Sentencing Accountability Commission. Section 6. This section establishes the Delaware Sentencing Accounting and Guidelines Commission. This Act places the Commission within the Criminal Justice Council to give the Commission the staff and support it needs to effect its purpose. The Commission has 17 voting members, many of whom are already represented on the current SENTAC. There are also 12 non-voting ex-officio members which include all entities in the criminal justice system. The Commission must meet at least 6 times a year and 8 members constitute a quorum. The Commission shall hire an executive director and additional personnel that are necessary to fulfill the responsibilities of the Commission. During the first 2 years, the Commission must review the existing sentencing guidelines and promulgate changes. The sentencing guidelines shall be the presumption in the sentencing of offenders. The guidelines will provide for a range of incarceration terms that are sufficiently narrow and proportionate to the crime. The guidelines shall also set forth a nonexclusive list of aggravating and mitigating factors. The guidelines will also provide bases for a departure from the presumptive sentence. The goal of the guidelines is to encourage judges to individualize sentencing decisions. The Commission will also develop, in conjunction with the Department of Correction, a community corrections strategy which will consider the existing community corrections programs within the State, the number of offenders, the level or resources, and the effectiveness of community corrections. The Commission will also work with the Department of Correction to develop a correctional-population model to project the future impact on the criminal justice system including the courts and Department of Correction. The Commission’s continuing responsibilities include revising the sentencing guidelines as needed, preparing a yearly correctional-population projection, data collection that tracks criminal cases through the court system and, investigating the existence of possible inequities and the corrections systems across population groups, such as groups defined by race, gender ethnicity and geographic location. The Commission will also enter and track applications made pursuant to § 4217 of Title 11 and their outcomes and investigate the existence of possible inequities in the processing and decision-making of such applications. Every 5 years, the Commission shall perform an omnibus review of the sentencing system. The Commission shall promulgate its sentencing guidelines and submit them to the Supreme Court no later than January 1, 2022 for adoption by court rule. The goal is that the sentencing guidelines will take effect April 1, 2022. Until then, the current guidelines created by SENTAC will remain in effect. Section 7. This Act is known as the “James Johnson Sentencing Reform Act.” Section 8. This section provides that Sections 1, 2, 4, 5, 6, and 7 take effect upon the Act’s enactment into law. Section 9. This section provides that §4217(d)(1)and (d)(3) take effect 120 days following the Act’s enactment into law. This means that the only petitions that can proceed after 120 days are those petitions initiated by the Department of Correction on the grounds of serious medical illness or infirmity or prison overcrowding. Section 10. This section provides that 4217(d)(2) takes effect 1 year following the Act’s enactment into law. This means that petitions on the basis of good cause can proceed 1 year after the Act’s enactment into law.
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