Banishing The Ghost of Red Hannah: Proportionality, Originalism, & The Living Constitution In Delaware

Article I of Delaware’s constitution provides a powerful safeguard against excessive or disproportionate sentences that, so far, has gone unenforced. Many of the rights protected by Article I are similar to those protected by the federal constitution. Article I, § 11 of the Delaware Constitution, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted . . . ,” a close cognate to the Eighth Amendment. But “cruel punishments” are not the same thing as “cruel or unusual punishments,” and the Delaware Constitution carries its own history, heritage and meanings.

This Article argues that Article I, § 11 incorporates the principle that punishments which are excessive or disproportionate in relation to the crime of conviction are “cruel,” and therefore constitutionally proscribed. This conclusion is justified by both (1) the original meaning of § 11 as amended and incorporated in 1792, and (2) Delaware case law as applied to the modern beliefs and sensibilities of the state. Either one of these arguments, alone, is sufficient to conclude that § 11 includes a proportionality principle that must be safeguarded by Delaware courts. Together, they should leave no doubt. Now, Delaware courts have a chance to breathe life into a constitutional protection that has been too long ignored.

Part I of this Article sketches the history of Delaware and examines its process of constitutional development up to the adoption of the 1792 constitution. Part II examines how the Delaware Supreme Court has analyzed and applied § 11 since 1963, when it first confronted the question of the provision’s meaning in the wake of federal incorporation of the Eighth Amendment. Part III argues that an original meaning analysis and application of the post-1963 case law, taken either together or separately, both establish that § 11 forbids excessive or disproportionate punishments as cruel. This Article concludes that Delaware courts should take up and defend this principle as applied to criminal sentences.