The justices said the law is also flawed because it allows the judge, not the jury, to make the crucial final determination on whether aggravating circumstances outweigh mitigating factors, thus mandating a death sentence.
Unlike under the Florida law, Vaughn said, a person in Delaware is not eligible for the death penalty until and unless a jury finds unanimously and beyond a reasonable doubt the existence of at least one specific statutory aggravating factor.
The justice agreed, however, that any problematic provision of Delaware's death penalty law cannot be severed from its other provisions so as to allow jury instructions that would comport with federal constitutional standards.
"Because the respective roles of the judge and jury are so complicated ..., we are unable to discern a method by which to parse the statute so as to preserve it," the court said, adding that any decision about reinstating the death penalty should be left to the General Assembly, where attempts by death penalty opponents to abolish capital punishment have repeatedly failed.
