More Diversion, Fewer Charges: Delaware Attorney General Reforms Prosecution

State advocates warn that implementation and office culture will pose challenges

Attorney General Kathleen Jennings released a memo in February outlining new policies that Delaware prosecutors should follow to “increase fairness and proportionality in the system” and “reverse” the “high rates of incarceration and recidivism.”

Delaware is a rare state without independently elected prosecutors; the attorney general appoints them and sets policy, much like district attorneys do with their deputies elsewhere. This made the state’s attorney general election in 2018 a hot spot for criminal justice reform.

The memo covers a wide range of areas from charging and plea-bargaining practices to youth justice and immigration. It instructs prosecutors to increase the use of diversion (for instance when it comes to offenses that involve marijuana), curb the use of money bail, limit the duration of probation, and take into account possible effects of prosecutorial decisions like deportation.

It pays special attention to charging decisions and plea negotiations, areas of great prosecutorial discretion. It adopts a presumption against stacking multiple charges that come with mandatory minimums—a practice that empowers prosecutors in plea bargaining—and against tying diversion programs to a guilty plea. To directly reduce incarceration, the memo also recommends that deputies seek the lower end of sentencing guidelines when dealing with “routine misdemeanor or felony cases,” and that they seek probation or home confinement in low-level cases where the guidelines call for a sentence ranging from “0 to 12 months.” Much of the memo focuses on such low-level offenses, but there is also a recognition that all sentencing practices ought to be re-examined; one provision requires that prosecutors ask for authorization before seeking a sentence exceeding 20 years.

Policies in the memo are introduced as “presumptive guidelines.” Many are described as steps that prosecutors are “encouraged” to pursue. For instance, the memo states that “we will continue to encourage alternatives to prosecution for misdemeanor possession of marijuana.”

I asked the attorney general’s office whether this language is a commitment to not prosecute such cases (a commitment some prosecutors have made), and whether there are situations where prosecutors may pursue charges of simple marijuana possession for quantities under 175 grams, which is the threshold for a misdemeanor offense. Carl Kanefsky, a spokesperson for the attorney general, told me via email that the memo indicates a “strong presumption to divert the accused from prosecution,” but that this is still a matter of individual assessment since by “virtue of being presumptive, these policies refrain from a one-size-fits-all approach.”

The reach and scope of these reforms, therefore, still hinge on how deputy prosecutors interpret them and how much latitude they are given.

“What we know is that professional cultures are hard to change,” Ryan Tack-Hooper, the legal director of the ACLU of Delaware, told me. “If prosecutors ignore the guidelines, or think every case is an exception, then the change will be limited. But if they follow it faithfully then it’s a game changer.”

Tack-Hooper praised the memo’s content as “very strong,” and “totally contrary to where prosecutors were a decade ago.” But he also noted the memo’s “reluctance” to loosen prosecutorial discretion and pointed to areas needing stronger commitments. “You could just say we’re not going to charge kids under 13 with a crime, period,” he said. Still, Tack-Hooper insisted that there is no getting around the need to modify deputy prosecutors’ behavior because impacting how they exercise discretion will always be crucial to reform. “Whether it will cause a sea change depends on how effective they are at changing the culture in addition to putting out these policies,” he said of the memo. It will not be easy for advocates to track whether this culture changes and apply public pressure, Tack-Hooper warned, because the memo does not improve data-gathering and transparency on matters like racial disparities in charging decisions. “If you open that to public scrutiny, it reinforces their ability to make the cultural changes that they’re trying to make,” he said.

Other state proponents of criminal justice reform also praised the memo’s goals and provisions, while outlining avenues to make reform more robust.

Chris Johnson, a lawyer who ran for attorney general in 2018 on a platform of “ending” mass incarceration, told me that the memo is “a victory for the criminal justice movement” that would not have been possible “three years ago”; he called the recommendation that prosecutors seek the lower end of sentencing guidelines “groundbreaking.” But he also warned that implementation will be the hard part, and he regretted that the memo did not go further on matters like seeking expungements and sentence modifications. Johnson believes that the attorney general should expand the resources devoted to reviewing past convictions and support safe injection sites. “To mention addiction and illness and not mention safe injection sites is wrong,” he said.

Charlotte King, co-founder of the Southern Delaware Alliance for Racial Justice, called on all other public officials to take stock of their responsibility and role regarding mass incarceration, and “to be as thoughtful as the attorney general in terms of looking at those barriers that really prevent change.” For instance, she called on lawmakers to codify the memo into law (some are reportedly looking to do so), and she pointed to the urgency of strengthening the prerelease services that the Department of Correction could provide.

“If you want to make transition back to the community a reality,” King said, “then you have to provide those services, and without services you may as well just keep people in jail because there’s nothing for them outside.” She added, “many agencies will have to work together if you really want maximum criminal justice reform.”