This week the Delaware Supreme Court will take up whether its decision that the state death penalty is unconstitutional should be applied retroactively for 12 men who are currently on death row.
The high court is set to hear arguments in Dover on December 7th.
The Wilmington News Journal reports that prosecutors will argue that doing so would violate precedent after a criminal case has been finished.
The case involves 29 year-old Derrick Powell who was sentenced to death for killing Georgetown police officer Chad Spicer.
His lawyers will argue that it would be unfair to execute him after the court found the law unconstitutional.
At issue is a decision by the U.S. Supreme Court that found a Florida law giving judges the final say instead of juries when imposing the death penalty was unconstitutional.
Delaware and Alabama are the only other states that had similar death penalty procedures.
