Delaware yesterday became the first state to draft specific legislation to try and comply with the Supreme Court's decisions upholding the right to a jury determination of the death penalty (Ring case)and prohibiting execution of the mentally retarded.(Atkins case).

According to our trusted death penalty expert, both bills have problems. "What's of concern is the incremental steps that are being proposed. Rather than embracing the spirit of the decisions and making "safe" bills, they drafted bills that, if passed, may be deemed unconstitutional."

The problem with the Ring bill concerning jury sentencing is that it calls for the jurors to make findings on the existence of aggravating factors, yet keeps the actual sentencing decision in the judge's hand. The jury remains in an advisory role only as to what the penalty should be.

The problems with Delaware's Atkins bill are that it allows the judge to delay the retardation finding until the sentencing phase and increases the defendant's burden of proof on retardation from a "preponderance of the evidence" standard to the higher "clear and convincing" standard. Also, once the defense files notice that he intends to raise mental retardation as an issue (which he must at least 90 days before trial), a mandatory court evaluation is ordered, which threatens the defendant's constitutional right to remain silent and not incriminate himself.

The two bills passed the Delaware Senate yesterday, and will now go to the house.

In Colorado, Governor Owens has called for a special legislative session to draft new legislation.