DOVER, Del. (AP) — Delaware's Supreme Court justices are considering whether to apply their earlier ruling declaring the state's death penalty law unconstitutional to the cases of a dozen men already sentenced to death.
The court heard arguments Wednesday in an appeal filed by Derrick Powell, 29, who was sentenced to death in 2011 for killing Georgetown police officer Chad Spicer in 2009.
Wednesday's arguments were held just hours after Georgia carried out its ninth execution this year, more than any other state. Texas has executed seven criminals, while Alabama, Florida and Missouri have each carried out one execution.
Meanwhile, an Alabama inmate convicted of killing a convenience store clerk is asking that the state's governor stop his execution, scheduled for Thursday, because a judge imposed a death sentence over the jury's 7-5 recommendation for life imprisonment.
Ronald Bert Smith's attorneys noted that Alabama is the only state that empowers judges to override jury decisions on whether an offender should get life in prison or the death penalty.
Delaware judges had that same power until a U.S. Supreme Court decision in January struck down Florida's death penalty sentencing structure because it gave too much power to judges. That ruling prompted a judicial review of Delaware's death penalty law.
In August, a majority of Delaware justices concluded that Delaware's law was unconstitutional because it allowed a judge to sentence a person to death independently of a jury's recommendation and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
In Powell's case, jurors voted 7-to-5 for the death penalty.
Patrick Collins, an attorney for Powell, noted Wednesday that the Delaware Supreme Court had twice vacated all death sentences after court rulings in the 1970s finding a death penalty statute unconstitutional.
"This situation is really no different from that," he said.
Deputy attorney general John Williams argued that the court's August ruling was more procedural than substantive, and that under a 1989 U.S. Supreme Court ruling, retroactivity does not apply. In "Teague v. Lane" the Supreme Court said a new rule of criminal procedure would not apply retroactively unless it fell under one of two narrow exceptions, including one involving "watershed rules of criminal procedure."
While the Delaware Supreme Court has adopted the Teague framework in other cases, the U.S. Supreme Court said in 2008 that states are not bound by it and are free to fashion their own rules regarding retroactivity.
"I understand the whole reason for Teague ... but how could it ever be just to execute someone who was sentenced under a flawed statute?" Justice Collins Seitz Jr. asked Williams. "I don't understand how that's just."
Chief Justice Leo Strine Jr. and other justices also seemed skeptical of Williams' argument that their August ruling was more about procedure than substance.
Collins urged the court to consider "evolving standards of decency" in deciding whether Powell's death sentence can be carried out.
"The overwhelming trend in this country is that when a statute is found unconstitutional, then states do not continue to carry out executions for those individuals on death row," he said, adding that Delaware would be "a real outlier" if Powell were to be executed.
The court is expected to issue its decision within 90 days.
This story has been corrected to reflect that the Alabama execution is scheduled for Thursday, not next week.