CHAPTER 1

FORMERLY

HOUSE BILL NO. 31

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO THE CASE OF WARD T. EVANS V. STATE OF DELAWARE, 2004 WL 2743546 (DEL. SUPR.) AND GENERALLY THE INTERPRETATION AND CONSTRUCTION OF DELAWARE LAWS BY DELAWARE JUDICIAL OFFICERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Part III, Title 10 of the Delaware Code by adding thereto a new chapter to read:

"CHAPTER 54. COURT INTERPRETATION AND CONSTRUCTION OF DELAWARE LAWS

§5401. Findings of the General Assembly.

(a) The members of the 143rd General Assembly find that:

(1) on November 23, 2004, the Delaware Supreme Court sitting en Banc decided the case of Ward T. Evans v. State of Delaware, 2004 WL 2743546 (Del. Supr.); and

(2) the Court held that Evans's life sentence with possibility of parole (the penalty imposed after a September 29, 1982 jury conviction of first degree rape) had to be calculated as a 45-year term, for purposes of determining his conditional release date pursuant to 11 Del. C. §4348; and

(3) in 1997, the Court held that §4348 could not be applied to inmates sentenced to life imprisonment with possibility of parole (Jackson v. Multi-Purpose Criminal Justice Facility, 700 A.2d 1203 (Del. 1997)), but in 2003 the Court reversed that decision (Crosby v. State, 824 A.2d 894 (Del. 2003)); and

(4) as a result of the Court's 2004 holding, the Evans case was reversed and remanded to the Superior Court for a determination of whether Evans had earned any good time or merit credits, and for an appropriate adjustment of his maximum release date; and

(5) following the Evans decision, the State of Delaware, through the Office of the Attorney General, filed a motion to reargue, which the Court denied; and

(6) Title 11, §4346 of the Delaware Code, which addresses eligibility for parole, states that "[f]or all purposes of this section, a person sentenced to imprisonment for life shall be considered as having been sentenced to a fixed term of 45 years" (emphasis added); and

(7) the 45-year fixed term was intended to apply and applies only to §4346 for determining parole, a discretionary proceeding, and does not apply to §4348, a mandatory proceeding which determines conditional release upon merit and good behavior credits; and

(8) when the General Assembly wrote the phrase, "shall, upon release, be deemed as released on parole" (emphasis added) in 11 Del. C. §4348, it was establishing a legal fiction in order to use the provisions of the Parole subchapter for supervision and other post-release requirements for both parolees and those conditionally released under §4348; and

(9) the special requirement of a super-majority vote to parole a person convicted of Rape in the first degree and other heinous crimes is further proof that §4346 and §4348 are two separate and distinct procedures, the former being discretionary and the latter, mandatory; and

(10) because applying the 45-year fixed term definition to §4348 results in the potential release from prison of a person convicted of Rape in the first degree after the person's serving as few as 26 years, and, further, will result in nearly 200 Delaware prisoners who have committed serious and heinous crimes prior to June 30, 1990 being released from prison, the Supreme Court erred by reading a clearly written statute, being 11 Del. C. §4346, and by applying it to another statute, despite the clear language that limits the definition of a life sentence with possibility of parole to only §4346. In addition, the General Assembly had never intended that good time or merit credits were to apply to serious, violent offenders.

§5402. Evans v. State

Based on the findings set forth in §5401 of this chapter and in recognition that the Delaware Constitution vests authority and sole responsibility for lawmaking in the General Assembly, the General Assembly asserts its right and prerogative to be the ultimate arbiter of the intent, meaning, and construction of its laws and to vigorously defend them; therefore, the members of the General Assembly declare that the decision of the Delaware Supreme Court in the case of Evans v. State, 2004 WL 2743546 (Del. Supr.), is null and void. Because the Court's order in Evans v. State has not yet been put into effect, the sentence of any prisoner who may have been affected by the Order, had it gone into effect, is deemed to be uninterrupted and is not subject to an ex post facto attack.

§5403. Construction and interpretation of laws.

(a) Delaware judicial officers may not create or amend statutes, nor second-guess the soundness of public policy or wisdom of the General Assembly in passing statutes, nor may they interpret or construe statutes and other Delaware law when the text is clear and unambiguous.

(b) Notwithstanding 11 Del. C. §203, Delaware judicial officers shall strictly interpret or construe legislative intent.

(c) Delaware judicial officers shall use the utmost restraint when interpreting or construing the laws of this State.".

Section 2. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and, to that end, the provisions of this Act are severable.

Approved February 7, 2005