On August 2, 2016, the Delaware Supreme Court issued its decision in Rauf v. State finding that the Delaware death penalty statute is unconstitutional pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016). The Delaware Supreme Court answered five questions certified by the superior court where Benjamin Rauf's capital prosecution is pending.
Question One: Under the Sixth Amendment to the United States Constitution, may a sentencing judge in a capital jury proceeding, independent of the jury, find the existence of any aggravating circumstance, statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding?
Answer: No. Because Delaware‘s capital sentencing scheme allows the judge to do this, it is unconstitutional.
Question Two: If the finding of the existence of any aggravating circumstance, statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding must be made by a jury, must the jury make the finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
Answer: Yes. The jury must make the finding unanimously and beyond a reasonable doubt. Because the Delaware death penalty statute does not require juror unanimity, it is unconstitutional.
Question Three: Does the Sixth Amendment to the United States Constitution require a jury, not a sentencing judge, to find that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist because, under 11 Del. C. § 4209, this is the critical finding upon which the sentencing judge shall impose a sentence of death?
Answer: Yes. Because Delaware‘s death penalty statute does not require the jury to perform this function, it is unconstitutional.
Question Four: If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
Answer: Yes. We answer question four in the identical manner in which we have answered question two.
Question Five: If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not comport with federal constitutional standards, can the provision for such be severed from the remainder of 11 Del. C. § 4209, and the Court proceed with instructions to the jury that comport with federal constitutional standards?
Answer: No. Because the respective roles of the judge and jury are so complicated under § 4209, we are unable to discern a method by which to parse the statute so as to preserve it. Because we see no way to sever § 4209, the decision whether to reinstate the death penalty—if our ruling ultimately becomes final—and under what procedures, should be left to the General Assembly.