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AG Jennings to Prosecutors: Ease up on Sentencing Non-violent Offenders

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Citing incarceration and recidivism rates that outstrip the national average, an unprecedented opioid epidemic, and a groundswell of public support for reform, Attorney General Kathy Jennings announced new internal guidelines that will shift focus to violent crime

On the heels of sweeping criminal justice reform legislation signed into law by President Trump in January, Delaware Attorney General Kathy Jennings implemented 30 new internal guidelines that will reduce or avoid prison time for lower-level offenders and shift the state Justice Department’s focus to prosecuting violent crime.

In Monday’s announcement, Jennings said the reforms were meant to address statewide incarceration and recidivism rates that outpace the national average, as well as the ravages of the national opioid epidemic.  Jennings also cited national and local public support for more strategic approaches to charging and sentencing crimes as well as smarter policies around probation, bail, and expungements.

Jennings detailed the new DOJ policies in a memo to prosecutors and staff focusing on an increased emphasis on judicial discretion, more diversion for lower-level offenses, reducing long-term economic consequences associated with criminal records, and directing department resources to curb violent crime.

“We don’t have to choose between public safety and progress; we can and must choose both,” said Jennings. “Our decisions substantially impact peoples’ lives and livelihoods, their families, and the community’s faith in the system … These internal reforms are an important step forward in a long journey toward the model of justice that the people of this state expect of us, and that we expect of ourselves.”

 According to the Sentencing Project, Delaware’s 2016 incarceration rate ranked 16th among all states and was among the highest in the region. The state also has a high rate of recidivism: figures from the Criminal Justice Council show a three-year re-arrest rate of 72.8 percent.

Governor John Carney praised the DOJ changes.“We have a responsibility to make sure Delaware’s criminal justice system is fair to all Delawareans,” said Carney. “These policy changes … ensure that our resources are focused on prosecuting crimes that represent the greatest threat to our communities.”

Key provisions of the Jennings memo include:

  • Support for pretrial practices that deemphasize cash bail for routine misdemeanors 
  • Guidance to avoid unjust “stacking” of minimum mandatory sentences and to reduce requests for the Courts to declare a defendant a habitual offender in order to increase sentences, especially with non-violent crimes
  • Policies that aim to address the opioid epidemic by relying on mental health and drug treatment needs before prison sentences 
  • Emphasis on diversion and alternatives to prosecution for several categories of low-level offenses, including simple possession of marijuana and prostitution
  • Consideration of alternatives to prison that limit collateral consequences while accounting for public safety, such as house arrest
  • Emphasis on judicial discretion in sentencing, shorter sentencing recommendations, probation in lieu of some prison sentences, and recommending judges limit probation to one year in most scenarios
  • Opposition to the issuance of warrants and driving license revocation for failure to pay fines and fees when the accused is without the ability to pay
  • Consideration of collateral consequences for undocumented victims and witnesses
  • Juvenile justice provisions that encourage extended Family Court jurisdiction and discourage trying children as adults except when necessary
  • Support for expungements for crimes that are now legal, and for nonviolent charges in which a nolle prosequi (a decision not to pursue charges) has been entered on the basis of insufficient evidence
  • Support for pardons for isolated, non-violent crimes when the applicant has demonstrated sufficient rehabilitation

The DOJ said that all of Attorney General Jennings’ internal changes are presumptive guidelines; prosecutors will be able to seek exceptions to policies when individual cases’ facts and circumstances warrant the deviation.

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