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Tim Mullaney (D)

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20 Questions for Delaware Attorney General Candidates

The Coalition for Smart Justice is committed to cutting the number of prisoners in Delaware in half and eliminating racial disparities in the criminal justice system. Prosecutors are essential to achieving those goals. Since the attorney general is the leading law enforcement officer in the state and oversees the work of all the career prosecutors in Delaware, we are prioritizing a campaign to communicate with voters about attorney general candidates’ positions on issues related to criminal justice reform. This questionnaire is the focus of that effort.

 

Leadership

 Will you pledge to articulate and implement a vision for the Department of Justice that recognizes Delaware’s mass incarceration problem, supports criminal justice reform and aligns the work of the Department—including internal and external communications, training, policies, and hiring and promotion practices—to reflect that vision? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☒  No☐

I have a vision for the Department of Justice that treats all people in a fair and equitable manner. Yet we must acknowledge that the problems that exist in the Criminal Justice System cannot be simply laid at the feet of the Department of Justice. This problem is not that simplistic. This is a problem of our society as a whole and we have to deal with the root causes not just the effects.

We must also realize that Delaware has a “Crime Problem” that is related to the mass incarceration in this state. Wilmington was recently cited in 2017 as the number one city in terms of juveniles being shot. The rate is double that of Trenton, the number two city in that study. Primarily, this is youth on youth violence, so offenders are entering the system at a younger and younger age. This cycle of violence ensuring prisons full of violent offenders unless and until the issues underlying juvenile violence are effectively addressed.

That is why I have proposed a partnership between the DOJ, Public Defender, Family Court, Social Services, Law Enforcement, Non-Profits and the Business Community in dealing with the issue of youth offenders. I believe we can identify these at-risk juveniles and divert them when they first come to our attention, as being at risk for more serious/violent offenses.  We need to divert them to programs that help to address the underlying issues contributing to their criminal behavior. We cannot continue to do business as usual in placing these juveniles on probation and then releasing to the same environment that fosters their delinquent behavior. I believe we can make a difference.

Criminal Justice reform is a cornerstone of this campaign and is more than just a sound bite. I am willing to address and change those areas that are not working or are not fair and impartial. I am willing and ready to work with other agencies where needed – police, social workers, educations, particularly to ensure success of a juvenile justice program designed to stem the tide of youthful offenders. Additionally, we need to continue to work on the existing drug diversion programs that focus on the growing opioid epidemic.

How should the success of a prosecutor in Delaware be measured?

We have an outstanding group of attorneys and staff working in the Department of Justice.  They are dedicated individuals who are doing their best to carry out the mission of the department. However, we should not measure a prosecutor’s worth simply by looking at the won vs. lost column because it is so much more than that. We should be looking at how that prosecutor has handled the case in terms of how he or she has dealt with law enforcement, witnesses, the courts and opposing counsel. Success is more than a guilty verdict, more than the number of pleas bargains negotiated, more than the sentence rendered by the court. Success, for a prosecutor in the Mullaney Administration, is measured in terms of justice delivered evenly across the board. Success equals a community that trusts it is protected and safeguarded against not only a violent criminal element, but from corrupt businesses, illegal manipulation of landlords, and all predators targeting in a variety of ways those who do not have a voice or means to protect themselves. Success is an office working in lockstep to achieve this level of security for the people of Delaware. Success is creating a team prosecution of deputy AGs, police, witnesses and experts to carry out the goal of fairness and equality for all.

 What would you do to reduce the racial disparities at various stages of the Delaware criminal process?

I would require that the Department of Justice implement and work proactively with other components of the law enforcement community to create a system that does not take into account race, gender, religion or sexual preference when pursing justice. I would support training throughout the office, as well as throughout the rest of the Criminal Justice System, to shed light on practices that may have been acceptable in the past, but do not service the community in the present.

 

Mass Incarceration

 Do you believe Delaware incarcerates too many people? What would you do to substantially reduce the number of prison admissions in Delaware?

Yes. Not only do we incarcerate too many people in general, we do a poor job of providing support after incarceration. When a person first touches the criminal justice system (usually when they are juveniles) that is the best opportunity to intervene and try to alter a course of action or behavior that may only get worse. (See also answer to question 1.)

Incarceration must be reserved for the truly violent criminals or those who seek to prey on innocents (including, but not limited to, drug dealers, those who produce or distribute child pornography, etc.). We need to look at programs that address recidivism so that prison doesn’t continue to be a revolving door. We must differentiate drug abusers from drug dealers and made sure that treatment opportunities are available for those caught up in the abuse of drugs. We can’t expect these individuals to stay clean without some form of treatment. Waiting months to get into a program is unacceptable.

 Do you believe that prosecutors’ practices have contributed significantly to mass incarceration? Why or why not?

The overcrowding of our prisons with low risk offenders is the product of number of factors, and I am committed to understanding how and if the Department of Justice can make a positive impact on this broader problem.

I believe the dedicated men and women of the Department of Justice are doing their best to deal with the onslaught of criminal prosecutions brought before the courts. Prosecutors should be rewarded for displaying appropriate judgment with regard to individual cases.  The Office should encourage a relationship between prosecutors and law enforcement to ensure that the proper charges are brought from the outset. Charges should not be included as “plea fodder” to strengthen future negotiations with the defense. At the same time, prosecutor’s conduct should ensure that these types of charges are not needed.  Charges carrying minimum mandatory prison terms should be brought with care – exercising judgement from the outset, not just blindly signing indictments without regard for repercussions.

Do you support pre-arrest and pre-trial diversion programs? What steps would you take to increase the number of people who are diverted, including diversion to programs and resources outside the criminal justice system?

Yes. Please see answer to question 1 and question 4. In short, I have proposed a new type of program for the diversion of juvenile offenders at the earliest possible time. I support our drug diversion program, as well as the Mental Health and Veteran Courts.

Will you pledge to support increased involvement of prosecutors at the charging stage in order to ensure that cases prosecutors do not wish to pursue are dismissed early or never get charged in the first place? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☒  No☐

If you are talking about the time when officers first come into contact with defendants, the reality is that is not possible when you take into account the number of arrests and the number of prosecutors available. I believe in the most serious of offenses this is already being done.

It’s worth noting that the DOJ has dedicated an entire unit (Felony Screening) to reviewing cases with early dispositions in mind. Felony level cases are reviewed and decisions to downgrade or dismiss are made as early as the preliminary hearing, and in some cases even before that early date. This is one of the largest caseloads in the office. In order to streamline the process and potentially increase its effectiveness and allow prosecutors to spend more time talking to victims, police, and other concerned individuals to bring about early dispositions, the Office would have to increase the number of Deputies assigned to the unit. As such, the State budget becomes a key factor. This may not be a problem unilaterally solved through just the DOJ.

Will you pledge to adopt policies and training so that prosecutors in Delaware only file charges that would lead to fair punishment if the defendant were sentenced on all charges and not to use the threat of less-supported or duplicative charges to secure plea bargains? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☒  No☐

The only charges that should be filed are those that are supported by the evidence and are not duplicative in nature. That doesn’t mean you can’t have charges that overlap. I would hope that our prosecutors are treating everyone fairly and if not, they will under my administration. See also the answer to question 5.

Will you pledge to advocate for the elimination of the automatic issuance of warrants for failures to pay fines? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☐  No☒

There must be a consequence for not paying fines. I am not saying incarceration but they have to be brought before the court to explain the circumstances for the non-payment. It is very easy to get on a payment plan or to work out a schedule that is not overly burdensome. There has to be some accountability.

 

Sentencing

 Do you support shortening the average length of sentences served in Delaware? What steps will you take to make that happen?

I think we need to look at this in more detail. To just simply say yes without taking into account the offense or the victims is not being responsive to the concerns of the victim nor the citizens of our state. The better route is to look at the penalties for crimes and see what needs to be done at that level.

Will you pledge that you will advocate for the elimination of all mandatory minimum sentences? Please give a yes or no answer, and any explanation you believe is necessary. If there are any mandatory minimums you support, please identify them specifically.

Yes ☐  No☒

In some cases, mandatory minimum sentencing is appropriate, particularly in the instance of violent offenses. That said, to the extent the statutes do not provide sufficient judicial discretion to alter or change a sentence that would be patently unfair or unjust, I am open to working with state legislators to ensure that appropriate safe guards are reflected in the statutes.

Mandatory sentences were first introduced to ensure consistency across the state for similarly situated defendants. These should be reserved for serious offenses.

Will you pledge to oppose efforts to bring back the death penalty in Delaware, and to instruct prosecutors not to seek the death penalty if it is reinstated? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☐  No☒

The Department of Justice follows the laws that are written. If the Death Penalty was reinstated, I would follow the law. I believe there are appropriate times a Death Penalty should be considered, such as premeditated killing of a first responder or a correctional officer during the course of his duties with the Department of Corrections.

 

Pre-trial Detention

 Do you support substantially reducing the number of people detained pre-trial in Delaware? What steps will you take to make that happen? 

Yes, for nonviolent offenders. I support some common-sense modification to the bail structure. We should work harder at the earliest stages of the case to resolve it.

Will you pledge to support changes in the law that eliminate or radically reduce the use of monetary payment as a condition of pretrial release? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☒  No☐

I am open to any reasonable solution that reduces the pre-trial population in our prisons and still ensures that defendants are present for appropriate disposition of their case.

Some people have proposed allowing for up to 10 days of pretrial detention without any possibility of release before certain people charged with crimes have a full evidentiary hearing on whether they should be detained. Do you support shortening that period to 3 days like other states? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☐  No☒ 

Shortening the pre-trial detention to three days would put the prosecutor at a severe disadvantage in getting the cases resolved. He or she wouldn’t have the proper time to devote to the cases in order to realistically make an offer to the defense. It is a question of resources that we just don’t currently have. The prosecutors in the DOJ already have an onerous caseload. Not to mention the support staff needed to reduce this time period.  Realistically, this endeavor is not attainable at this time due to the budgetary constraints.

 

Transparency and Accountability

 Will you pledge to collect and publicize statistical information disaggregated by race and gender on charging decisions, plea bargaining and sentence recommendations, convictions, declinations and diversion program placements? Please give a yes or no answer, and any explanation you believe is necessary. If you only support publicizing some of this data, please specify.

Yes ☒  No☐

Transparency and accountability is critical in any criminal justice system and I fully support those efforts. However, to do so the DOJ would need additional resources to gather and present this information.

Will you pledge to publicize all policies, protocols, and MOUs regarding prosecution guidelines, police-involved incidents, bail recommendations, fines and fees, diversion programs, plea bargains, civil asset forfeiture, and immigration considerations? Please give a yes or no answer, and any explanation you believe is necessary. If you only support publicizing some of these policies, please specify.

Yes ☒  No☐

I have answered with a qualified “yes” but I would need some additional information as to what your definition of some of the above terms entail. Once again, we would need additional resources to be able to follow through with this request.

Will you pledge to require all Delaware prosecutors to share police reports and witness statements with defense attorneys at or before preliminary hearings? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☒  No☐

I think the office policy is to share at the preliminary hearing stage, as long as the defendant waives the hearing itself. I am fine with sharing the reports and witness statements at the preliminary hearing with no strings attached.

Will you pledge to reform DOJ’s Actual Innocence Project to expand it into a fully staffed Sentence Review Unit whose mission to review the cases of people who may be actually innocent of a crime for which they were convicted (without other eligibility restrictions), and to include in the mission the review of lengthy sentences that there is good cause to modify under 11 Del. C. § 4217 (and support legislative change to allow for Deputy Attorneys General to move to modify sentences)? Please give a yes or no answer, and any explanation you believe is necessary.

Yes ☐  No☒ 

I will need to evaluate this program when I get in office. There is no way this project can be staffed under the guidelines that you have stated above. We must also be realistic about budgetary constraints and the overall fiscal health of our state. I do not see the money for this project. At first blush, I think this program may be better suited for the Office of the Public Defender but they would need additional resources to be able to accomplish that task.

 

Juvenile Justice

 Under what circumstances, if any, do you believe people under 18 should be prosecuted as adults? Will you pledge to support changes in the law consistent with your answer?

I believe this is a case-by-case review. This will be driven by the nature and severity of the crime. An example where a juvenile might be tried as an adult would be a violent crime perpetuated by a youth 16 or older against a vulnerable victim. You have to take the criminal history into account as well, especially when a juvenile is very close to the age of maturity and the crime at issues involves a violent offense.

 

To download Tim’s answers as a PDF, click here.