Attorney General Race Could Reshape Prosecution in Delaware

Daniel Nichanian

Delaware is a rare state that does not elect prosecutors, instead entrusting its attorney general to appoint them. This year’s incumbentless attorney general race is thus crucial for the state’s criminal justice system. In the Sept. 6 Democratic primary—the first contested primary in 20 years—the four candidates are Kathy Jennings, Chris Johnson, Tim Mullaney, and LaKresha Roberts. All except Johnson (a defense attorney) have worked in Delaware’s Department of Justice (DOJ); Mullaney has also worked at the national Fraternal Order of Police.

The campaign has mostly broken the mold of “tough-on-crime” campaigning, according to the Delaware News Journal’s Xerxes Wilson. The candidates agree that the state incarcerates too many people—and too many Black people in particular—and all talk about bail reform and stronger diversion programs. “There has not been this public discourse around structural racism and its impact on the black community and the relationship to law enforcement in the legal system,” said Raye Avery, president of the Committee of 100 Black Women Delaware chapter.

That said, the candidates’ agendas differ significantly, as is visible in their responses to this ACLU questionnaire or in debates. For one, Mullaney’s platform is less progressive. He is the only candidate to support reinstating the death penalty for certain crimes. (Delaware’s Supreme Court ruled capital punishment unconstitutional in 2016, but many lawmakers favor overturning that decision.) He is also the only candidate to reject “the elimination of the automatic issuance of warrants for failures to pay fines” and to oppose legalizing marijuana.

Meanwhile, Johnson says that his “top priority is to end mass incarceration.” “Mass incarceration is bankrupting Delaware, in both a moral and fiscal sense,” Johnson wrote in an op-ed that draws policy lessons from a 2017 prison riot. He argues that the riot resulted from “systemic problems” that must be addressed through decarceration. “Rather than putting more officers into dangerous working conditions … I propose that we manipulate the other side of this equation: We must rapidly and dramatically reduce our prison population.”

Johnson has said elsewhere that, with his reforms, “Delaware could see a 10-20% decrease in its prison population by 2020.” In the op-ed, Johnson specifically commits to ending prosecutors’ habit of overcharging and to not prosecuting some nonviolent cases. He is the only candidate to tell the ACLU that no one under the age of 18 should be prosecuted as an adult, to support repealing all mandatory minimum sentences (Jennings and Roberts do say that they favor scaling them back), and to pledge that he would instruct prosecutors to not seek death sentences even if the legislature reinstates it.

Jennings, who supervised criminal prosecutions while at the DOJ, had raised more money than all her opponents combined as of mid-August. A former prosecutor who supervised criminal prosecutions while working for the state Department of Justice, she has talked of the need to reduce incarceration and has highlighted her past support for reform legislation like a 2016 bill that repealed some mandatory life sentences. She advocates enabling judges to impose concurrent rather than consecutive sentences. “I support revising our criminal code to avoid the stacking of charges on top of one another for a single crime,” she said in an ACLU candidate questionnaire where she also committed to supporting reductions to—but not the repeal of—mandatory minimum sentences.

Jennings said during the campaign that she opposes capital punishment. “It has not proven to be an effective deterrent, and the process by which it has been imposed has been ruled unconstitutional,” she told the ACLU. She did not commit to not seeking the death penalty if the legislature does reinstate it, however; in 2013, she testified in the legislature against a bill that would have abolished the death penalty.