IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
) I.D. No. 1401003084
v. )
)
)
KEITH BROWN, )
)
Defendant. )
ORDER
1. This will mark one of the earlier decisions to consider the recently
revised 11 Del. C §4217. For the reasons that follow, the Court denies the relief
requested.
2. Section 4217 was originally passed by the General Assembly as a part
of the “Truth in Sentencing Act of 1989.” Back then it was a provision providing
for “compassionate relief.” It allowed the Department of Corrections (“DOC”) to
petition the Court for reduction of criminal sentences for 3 reasons: 1) “exceptional
rehabilitation,” 2) the inmate’s medical condition or 3) prison overcrowding. It
eliminated the availability of parole for sentences imposed after the effective date of
the Act. 1 It also provided that the Court would retain jurisdiction over a sentence to
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1
135 Del. Laws, Ch. 130, Section 7.
modify it “solely on the basis of an application filed by the Department of Correction
(“DOC”) for good cause shown.” An application was to include certification by
DOC that an inmate’s release did not constitute a threat to public safety. 2 1F
3. Despite the elimination of parole, the statute was revised in 1994 to give
the Board of Parole a more robust role in section 4217 applications. DOC’s
application under section 4217 would be required to pass through the Board of
Parole, which would solicit the input of the Attorney General. If DOC did not
initiate, or the Parole Board did approve the application, it would never get to
Superior Court. 3 2F
4. In 2010, the criterion of “exceptional rehabilitation” was amended to
remove the word “exceptional.” According to the preamble to the amendment, the
General Assembly noted that “the lack of proper definition has led to confusion by
DOC which must make an initial determination regarding rehabilitation of an
inmate.” 4 3F
5. It is significant that cases arising under section 4217 that actually
reached Superior Court prior to 2025 were exceedingly rare. Whether this was
because DOC did not seek them at all, or because the Board of Parole did not approve
2
See 67 Del. Laws 1990, Ch. 350 §4-6.
3
1994 Del. Laws ch. 311.
4
77 Del. Laws 2010, Ch. 362
2
them is not known or particularly relevant. What is known is that until 2025, there
were very few cases brought under section 4217 and no decisional law interpreting
the “good cause” criterion of section 4217.
6. There is no doubt that the 2025 amendments to section 4217 were
intended to broaden the availability of section 4217 and to remove the restriction of
DOC or the Board of Parole for an application to proceed to Superior Court. Under
the amended process, any inmate that has served at least half his sentence for a
“violent felony” and has served all of any minimum mandatory sentence 5 may apply
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directly to the Court for relief, unhampered by the previously required approvals of
DOC or the Board of Parole. As rewritten, the Court “retains jurisdiction” to modify
any sentence in excess of one year to reduce the period of incarceration. 6 5F
7. One vestige of the prior statute is that DOC is required to state its
recommendation as to the pro se or counseled application. 7 DOC is required to
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advise the Court whether DOC believes there is “good cause” for a modification and
whether release of the inmate will constitute a substantial risk to 1) the community,
5
11 Del. C. S4217(a)(5). See 11 Del. C. §4201(c)(definition of violent felonies). While not applicable to this case, certain inmates who have served decades in jail are exempt from the limitation of subsection (a)(5). 11 Del. C. §4217(a)(3).
6
11 Del. C. §4217(a)(2).
7
11 Del. C. §4217(d)(2).
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2) a victim or witness or 3) the applicant for relief. 8 If DOC does not support the
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application, it must state why it does not. 9 8F
8. Brown meets the criteria of section 4217(a)(2) and 4217(a)(5) to apply
for modification. He was sentenced to more than one year of incarceration, has
served at least one half of the originally imposed sentence and he has completed all
minimum mandatory portions of the sentence. DOC has supported his application
by its certification that it believes the Defendant is not a substantial risk to the public.
9. Just as DOC is required to certify this conclusion, the Court is likewise
required to “find” that release of the inmate would not be a substantial risk to the
community, the victim, or the inmate. The basis upon which this “finding” is to be
made is left unidentified in the statute. Certainly, the Court can look at the
recommendation of DOC, but there is little else to consult, surely because the
Defendant has been in DOC’s custody for the past 12 years. DOC’s endorsement is
supported by an apparent lack of institutional write ups while in DOC custody, his
consistent employment at various institutional “jobs,” his completion of
“compulsory evidence-based Risk, Needs, Responsivity targeted intervention
programming identified by the Department’s validated assessments that positively
impact recidivism reduction,” and the time he has served already: 12 years.
8
11 Del. C. §4217(d)(1)b.
9
11 Del. C. §4217(d)(3).
4
10. Exactly what these programs are or how they reduce the risk to the
community are not further expanded, but neither are they contested by the
Department of Justice. Perhaps there will be a case in which these findings by DOC
should be further examined, but certainly this record does not give the Court any
reason to negate or undermine DOC’s conclusions.
11. Section 4217(b)(4) directs the Court to review:
“the facts of an offense that is the subject of the sentence
modification, including the underlying circumstances and nature of
the offense, the felony classification of the offense, the length of the
underlying sentence.”
12. In 2014, Mr. Brown was sentenced to 20 years in prison, half of which
was minimum mandatory: 10 years (non-mandatory) for Assault Second Degree, 5
years (mandatory) for Possession of a Firearm During Commission of a Felony, and
5 years (mandatory) for Possession of a Firearm by a Person Prohibited, all followed
by decreasing levels of community supervision.
13. The facts of the offense for which he was sentenced are disturbing. Mr.
Brown approached an individual on the street, grabbed him around the neck and put
a gun to his head, ordering him to get into the trunk of a car. When the man refused,
Brown shot him in the abdomen. Indicted for attempted murder and related firearms
charges, he pled guilty to Assault Second Degree and the two gun charges previously
mentioned.
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14. Were this a “one off” criminal act for Mr. Brown, those would be “bad
facts.” But it was not a one off. Rather, by the time of this shooting, he had compiled
a juvenile record of multiple felony arrests and adjudications. In 2007 he pled guilty
to Possession of a Firearm During Commission of a Felony as a “non-amenable”
juvenile. Those charges resulted from his gratuitous shooting of a store clerk in a
corner store in Wilmington.
15. In the few brief months after his release from that 5-year sentence, he
picked up charges involving drug dealing and a chase with police. It appears these
charges were washed out in the street shooting to which he pled guilty here. In this
case, the parties agreed to recommend 15 years in jail. After reviewing the
presentence report and considering the arguments of counsel, the Court found that
20 years was more appropriate.
16. Although the statute invites the Court to consider the rehabilitation of
the defendant in support of the requirement of a “good cause” finding in support of
modification of a sentence, it does not mandate modification merely because
rehabilitation is found. The Court retains the right to consider the facts of the charges
of conviction, the defendant’s prior history, and all the other factors that contribute
to arriving at a fair and just sentence.
17. The statute explains that “good cause includes rehabilitation of the
person, serious medical illness or infirmity of the person, and prison overcrowding.”
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It is important to recognize that the finding required is not whether there is “good
cause” to believe the inmate has been rehabilitated during his prison term. Rather,
the question is whether there is “good cause” to modify the sentence. That decision
rests on not only the rehabilitation of the inmate, but also the goals of sentencing
generally.
18. It is a fair point that some sentences are imposed less for their
retributive value than their rehabilitative value. Society is far better served, for
example, when the drug addict receives appropriate treatment to resist his desire for
drugs than simply putting him in jail for a period of time. The scales of justice are
not put in balance by a substantial jail sentence for a drug addict who is as much a
harm to himself as he is to society.
19. In other cases, the availability of rehabilitation is a less important
consideration than making the sentence express society’s outrage and the gravity of
the harm caused by the Defendant’s conduct. In the Court’s view, this is such a case.
At that point in his life, Mr. Brown was a shooter of innocents. Assuming he has
matured, his maturation does not diminish the harm done. When a citizen commits
an act of such violence upon another, that citizen should not be surprised that the
consequences may be rather severe. These are essential goals in sentencing:
retribution and deterrence. That the Defendant has made sufficiently good use of his
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time in prison for DOC to feel that he is no longer a danger is all to the better. In
fact, DOC was established “to provide for the treatment, rehabilitation and
restoration of offenders as useful, law-abiding citizens within the community.” 10 9F
That DOC has done what it was established to do and Defendant has made good use
of his time is certainly worthy of recognition. Nonetheless, in this case, the Court
believes the penalty imposed was proportionate to the Defendant’s conduct and the
harm done. The Court is not impressed that the Defendant’s rehabilitation is of
sufficient note to warrant a finding of “good cause” for modification of the sentence.
20. In addition to the Court’s sense that the sentence remains the one that
is fair and just, in 2025 the Defendant placed the very same arguments before the
Board of Commutations – an executive branch agency with co-extensive reach over
modification of Defendant’s sentence – and was rebuffed. The Court has concerns
about the dual availability of relief from both the executive and judicial branch at
the same time, but that is the scheme enacted by the General Assembly. The
executive branch controls DOC and is obviously in a better position than the Court
to assess the efficacy of rehabilitative programming offered by DOC. But the Board
was unconvinced that good cause existed to reduce the sentence in 2025. The Court,
10
11 Del. C. §6502(a).
8
which takes on faith DOC’s view of Defendant’s rehabilitation, likewise concludes
that good cause for reduction of his sentence has not been shown.
IT IS SO ORDERED this 31st day of August 2026.
/s/ Charles E. Butler
Charles E. Butler, Resident Judge
cc: Charles M. Oberly, III, Senior Advisor to the Attorney General
Ambria N. Smith, Esquire
Keith Brown
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