HB4 – the James Johnson Sentencing Reform Act

Retired State Representative James Johnson Jr. spent his career fighting for criminal justice reform. And now he has a bill named after him in the House that will achieve much of what he was fighting for.

House Bill 4, the James Johnson Sentencing Reform Act, would remove all Title 16 drug offenses from being designated as “violent felonies,” so they would no longer be subject to the enhanced charging and sentencing provisions as violent crimes. 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.

The bill would also expand the ability to modify sentences for conditional release based on the rehabilitation of the offender, serious medical illness or infirmity, or prison overcrowding.

In 1989, Delaware abolished parole. Since then, there has been essentially no functioning mechanism to release an offender prior to expiration of his sentence, other than good time credit. 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.

House Bill 4 would overhaul this and provide 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.

Finally, the bill would establish the Sentencing Accountability and Guidelines Commission The Commission must review the existing sentencing guidelines and propose changes. The new sentencing guidelines that the Commission will promulgate 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.

This legislation was introduced late in this session, and has been placed in the House Administration Committee for now. That all likely means it will not get a vote before June 30. I would imagine several hearings in the Judiciary and/or the Corrections committee will be needed before this bill gets a vote on the House floor, and all that will not happen over the next 18 days. So this bill will likely be considered next year.

WHERE IS THE BILL NOW? House Administration 6/10/19

DEMOCRATIC SPONSORS – Longhurst, Poore, McBride, Bolden, Chukwuocha, Cooke, Dorsey Walker, K.Johnson, Kowalko, Minor-Brown

REPUBLICAN SPONSORS –

YES VOTES – HOUSE —  ||| SENATE — 

NO VOTES – HOUSE — ||| SENATE — 

ABSENT –