With 13 people on death row, the Delaware Supreme Court has ruled that the way the state’s courts decide on the death penalty violates the Sixth Amendment of the U.S. Constitution. A majority of the five-man court held that Delaware’s process for sentencing someone to death unconstitutionally gave final authority to the judge, rather than the jury, reported the News Journal‘s Delaware Online.

The case, Benjamin Rauf v. Delaware, was brought in response to the U.S. Supreme Court’s January decision, Hurst v. Florida. That decision upheld the court’s 2002 7-2 decision in Ring v. Arizona (with both Antonin Scalia and Clarence Thomas voting in the majority), which found unconstitutional the state’s procedures that let the judge rather than the jury make determinations of fact that could lead to imposing the death penalty.

The court found also found, reported the New York Times, “that a jury not only must decide whether there were ‘aggravating circumstances’ that could justify a death penalty, but also must find, unanimously and beyond a reasonable doubt,’ that such aggravating factors outweigh any mitigating circumstances — the critical determination in imposing a death sentence.”

To maintain the death penalty in the state, the state’s General Assembly would have to change the procedure, and the newspaper noted that the state senate voted last year to abolish the death penalty and the governor opposes it. Gov. Jack Markell applauded the decision in a statement. “As I have come to see after careful consideration, the use of capital punishment is an instrument of imperfect justice that doesn’t make us any safer.”

If the state does not reinstitute the death penalty, it will be the 20th state without capital punishment. At this point 31, mostly in the south, southwest, and west, do. (Here is a map marking the states with and without the death penalty.)

In his decision (found in the Delaware Online story), Chief Justice Leo E. Strine, Jr., wrote that the right to a jury trial includes the right to have the jury decide whether to apply the death penalty. “Although states may give judges a role in tempering the harshness of a jury or in ensuring proportionality, they may not execute a defendant unless a jury has unanimously recommended that the defendant should suffer that fate. … The jury’s historical role as an important safeguard against overreaching in the most critical of contexts was recognized at the founding, and prevails in most states today, making our own state one of the few outliers.”

The Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.