On February 18, 2019, Attorney General Kathleen Jennings took an important step toward making Delaware’s criminal prosecution system more fair and just.

AG Jennings' announced a wide range of clear, reform-minded directives to the deputies working in the Department of Justice that recognize that true justice requires charges to match the seriousness of each individual offense, that diversion and treatment can be more effective public safety tools than incarceration and that the courts should have a robust role in determining appropriate sentences.

If implemented as written, these new guidelines should lead to changes in charging, sentencing, bail and expungement. As a result, more Delawareans should be diverted from prison and overall time served should be reduced. In turn, this will help reduce prison overcrowding, make more resources available for rehabilitative services for those already in prison, and ultimately lead to a stronger and fairer community.

“While we can’t change the system overnight, we can and are making sure that we lead by example. And we believe that this roadmap will bring us closer to a more balanced, a more fair and just criminal justice system.” — AG Jennings

Some of the reforms that AG Jennings outlines in her directives are:

  • Moving away from charging multiple mandatory minimums;

  • Moving away from zero-tolerance conditions upon people seeking drug, alcohol or mental health treatment;

  • Diverting people struggling with addiction or mental health illnesses to evidence-based treatment programs and away from the system altogether;

  • Using civil citations instead of prosecution for misdemeanor possession of marijuana or paraphernalia charges related to marijuana possession;

  • Referring people charged with prostitution to specialized treatment courts designed to assist them;

  • Taking collateral consequences into account when making prosecutorial decisions;

  • Recommending probation or home confinement for sentences less than 12 months;

  • Keeping probation recommendations to a one-year maximum when possible;

  • Moving toward restorative justice processes in appropriate situations;

  • Moving away from prison sentences for probation violations, such as missed curfews, etc.;

  • Opposing the issuance of warrants or the revocation of driving licenses for failure to pay fines when the defendant is without the ability to pay;

  • In juvenile cases, considering the effect of a child’s background and special needs, including the effect of trauma, on all disposition recommendations;

  • Supporting expanded use of civil citations;

  • Supporting expanded use of expungements, including for arrests for possession of marijuana and paraphernalia crimes related to marijuana possession;

  • Considering collateral consequences to undocumented victims or witnesses when deciding how to present a case.

The AG has a difficult and important job. As the top prosecutor in the state, she recognizes the powerful and unique role that prosecutors play when deciding who gets charged, for which crimes and, when a plea deal is struck, if someone goes to prison and for how long—and with the announcement of these directives it’s clear she is taking that responsibility seriously.

The ACLU of Delaware and members of the Coalition for Smart Justice look forward to working further with AG Jennings to take the next step of changing Delaware statutes through the legislative process to reduce unnecessary incarceration and the collateral consequences of a criminal conviction that have for years have harmed so many.

Click here to read the Attorney General’s full memo.

Click here to read ACLU-DE's full response.