AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO CONTROLLED SUBSTANCES.

In 2011, as part of a general overhaul of Delaware’s drug laws, this provision was inserted into Title 16 to allow juvenile adjudications to count as prior qualifying offenses for purposes of increasing the sentence of certain drug offenders. Pursuant to this provision, some defendants convicted of certain drug crimes who have one prior adult drug conviction and one prior juvenile adjudication within the past 10 years face a drastic increase in sentence as follows: A defendant convicted of “drug dealing – aggravated possession”, a class D felony, will be sentenced as if he had committed a class B felony. The sentence for a class D felony is up to 8 years imprisonment. For a class B felony the sentence can be up to 25 years, and 2 years is the minimum mandatory. A defendant convicted of aggravated possession – class E will be sentenced as if she had committed a class B felony. The penalty is elevated from a maximum of 5 years incarceration to, again, a maximum of 25 with a 2 year minimum mandatory. A defendant convicted of aggravated possession – class F will be sentenced as though he committed a class C felony. Class C felonies are punishable by up to 15 years, rather than the maximum of 3 years for a class F. There is no other part of the criminal code that uses a juvenile adjudication as a statutory sentence enhancement in an adult conviction. While repeat drug offenses are a legitimate concern for communities and the criminal justice system, the elevation of the punishment for a crime based on a juvenile adjudication, which was not tried before a jury, and which may be relatively remote in time is of questionable legal merit. Furthermore, in two of the above scenarios, the crime is elevated to one which requires a minimum mandatory sentence, thus reducing the discretion entrusted to judges. This bill removes that portion of Section 4751B that allows a juvenile adjudication to be used as a second “prior qualifying Title 16 conviction.” Prosecutors may still apply the sentencing enhancement for the single qualifying adult conviction that meets the criteria set out in that section, and may use the enhancement for two prior convictions where both convictions occurred when the defendant was an adult. Judges will continue to be able to consider the defendant’s juvenile record as a factor in determining the appropriate sentence. Finally, where a juvenile was tried and sentenced as an adult, that conviction may still be used for the sentencing enhancement.