On June 20, 2016, Governor Markell signed the new habitual offender law, known as SB 163.  The purpose of the new law is to focus our habitual sentencing on violent offenders and eliminate mandatory life sentences for drug offenders.  For the Governor’s press release, click here.  Our new law does make meaningful changes for habitual sentencing, but it still has a lot of teeth and results in harsh penalties for violent offenders.  This explainer will give an overview of the new law and how it differs from our old law.

The Old Habitual Offender Law

The old law, 11 Del Code § 4214, (click here to view), set up a two-tiered system for habitual offenders.  The “B” section is the mandatory life sentence, and the “A” section had significantly enhanced penalties.

  • Life under the B section: a person convicted of three listed violent felonies got mandatory life. The “B” list is smaller than our overall list of violent felonies and includes the really bad ones: arson, murder, assault, rape, etc.—and drug dealing. This is a classic “three strikes, you’re out approach.” The judge had no discretion at all and had to impose a life sentence with no possibility of early release.
  • Penalties under the A section: a person convicted of their fourth felony of any kind was declared habitual, meaning they were eligible for up to life in the judge’s discretion.  If the fourth felony was a Title 11 violent felony, then for those charges, the maximum sentence became the minimum for the habitual offender. Example: Robbery First Degree has a penalty of 3-25 years, but not for the habitual offender. That offender’s sentence range is from 25 to life.
  • Under the A section the list of Title 11 violent felonies is much larger, and includes all violent felonies, not just the ones in the B list. Title 11 crimes do not include drug crimes. So for a fourth violent felony of drug dealing, the sentence would be the same minimum as anyone else, but up to life.

The New Habitual Offender Law

The new law gets rid of the “B” list, and goes with our standard list of Title 11 violent felonies. (Drug offenses are in Title 16.) That takes life for drug offenses off the table.  Our list of Title 11 violent felonies, section 4201, can be found here.  No more mandatory life sentences.  No habitual mandatories for drug offenses. Here is a breakdown of how the statute works:

A.   Your third Title 11violent felony or your fourth felony of any kind makes you an habitual offender and you can get up to life.

B.   If you have three felonies of any kind on your record, and your fourth one is a Title 11 violent felony, your minimum sentence is half the maximum.  So in the robbery example above, your minimum would be 12 ½ years, not 25.

C.  If you have two nonviolent felonies + 1 Title 11 violent felony, then you get another violent felony conviction, your sentence is the maximum for that felony.  So for these folks, back to 25 years in the robbery example.

D.  For your third Title 11 violent felony, same deal. The maximum becomes your minimum.

Sentence modification.

The law is a rare one in that it is retroactive.  Inmates may apply for sentence modification.  Here is how that works:

  • An inmate affected by the new law gets one opportunity for a modification.
  • But not until AFTER the new minimum (per the new statute or the minimum for what you are serving time for) is served.
  • Example: a person serving life for a drug offense, who has served, for example, the two year minimum for that drug offense, may apply for modification.
  • Example: a person who has three Title 11 violent felonies and is serving life, and has already served the habitual minimum (25 years in the robbery example) may apply for modification.
  • The Superior Court has to establish rules for the modification procedure.
  • Former counsel or the Office of Defense Services will be notified of eligible inmates.
  • Title 16 drug habitual offenders get priority, followed by property offense habitual offenders.
  • The DOC must notify all inmates eligible for modification under the new law no later than January 1, 2017.

So to sum up: inmates doing life for drug offenses and property crimes will get a chance for modification soon.  Violent offenders will also be eligible, but in many cases, the law hasn’t really changed much for them.

If anyone has questions about our new habitual law, or criminal justice issues in general, feel free to contact us.

–Patrick J. Collins.