HOUSE OKS CHANGE IN MANDATORY SENTENCES

Judges Would Consider Case by Case

DOVER -- Legislation to repeal Delaware's minimum mandatory drug
sentences and restore judges' ability to sentence on a case-by-case
basis passed the state House 26-13 Tuesday, despite charges by
police and prosecutors that the bill would hamstring law enforcement.

But opponents of House Bill 71, sponsored by House Speaker Terry
Spence, R-Stratford, are pinning their hopes on the Senate, where
they say they have a chance of stopping the bill in its tracks.

Senate President Pro Tem Thurman Adams Jr., D-Bridgeville, said H.B.
71 is likely to face problems in his chamber.

"I'd say it's a toss-up at this point," Adams said. "I personally
don't like it. ... I don't know what's going to happen with it, but
it's likely to get some discussion."

Gov. Ruth Ann Minner said she supports the bill's concept, although
she'll withhold final judgment until she sees whether the Senate
amends the measure and how those changes, if they come, are handled
by the House.

"One of the points that really wasn't made was that our prisons are
overcrowded and this might do something to help," Minner said.

H.B. 71 is backed by defense attorneys and Stand Up for What's Right
and Just, a Wilmington-based advocacy group that has lobbied
unsuccessfully for similar bills in the past. Attorney General Beau
Biden and the Delaware Police Chiefs Council oppose it.

On Tuesday, both sides squared off in a debate that centered on
fairness: what is fair to the defendants in drug cases and what is
fair to society at large.

Dover Police Chief Jeffrey Horvath held up a bag that contained 10
grams of crack cocaine his officers seized in a Dover drug bust.
"This sells for $500 in Dover," he said, adding that a dealer in his
city could sell that, gram by gram, for $1,000 in one hour or less.

"Almost all of the shootings in Dover are related to this," Horvath
said, holding the bag aloft again. Without minimum mandatory
sentences on the books, "We'll have to work a hell of a lot harder," he said.

Wilmington Police Chief Michael Szczerba echoed Horvath's testimony
- -- and was not impressed that SURJ is now headed by Louis Freeh, a
former FBI director who lives in Greenville.

"Drug dealers aren't really hanging out on those corners [in
Greenville]," Szczerba said.

Police and prosecutors say the prospect of a mandatory sentence can
convince a defendant to provide them information that leads them to
drug kingpins, and without that tool, many defendants would clam up.

State Prosecutor Richard Andrews told the House that of 6,300 drug
arrests statewide in 2005, only 133 were minimum-mandatory cases.
Those sentences "essentially apply to the worst of the worst," Andrews said.

But Edmund N. "Ned" Carpenter II, a SURJ member considered by many
to be the dean of Delaware lawyers, said the current system
essentially transfers sentencing power to prosecutors, who decide
whether to pursue a mandatory sentence.

Wilmington attorney Thomas Foley, himself a former prosecutor and
SURJ backer, said H.B. 71 restores the balance of power in criminal cases.

"All we're really asking in this bill is that we allow judges to
carry out their role," Foley said.

He was backed by former Supreme Court Justice Joseph T. Walsh, who
said that with the advent of minimum mandatory sentences, "there is
no balance."

Fears that criminals will get off easy, Walsh said, are misplaced.

"I know every judge in this state, and I do not know one
soft-on-sentencing judge," he said.

H.B. 71 would repeal the mandatory minimums and reclassify drug
trafficking crimes from Class B to Class C felonies. A person who
now faces a two-to 25-year-sentence would instead face zero to 15
years. That means that the average offender who now faces a sentence
of two to five years would face zero to 2 1/2 years.

An amendment approved Tuesday would leave the maximum term of
imprisonment for drug trafficking at 25 years -- a penalty judges
could levy if merited.