Republican Florida Gov. Ron DeSantis is set to sign new legislation authorizing the execution of child rapists, cuing up a potential Supreme Court fight to overturn a previous ruling prohibiting it.
The Florida House and Senate have both passed CS 1297, a bill to permit capital punishment for those who commit sexual battery against children under 12 years old, and DeSantis could sign it in the coming days.
The governor said Tuesday he believed the Supreme Court would consider a challenge to recent precedent against the death penalty for child rapists.
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In the 2008 Kennedy v. Louisiana decision, a five-Justice Supreme Court majority ruled against executing child rapists under the Eighth Amendment, which prohibits cruel and unusual punishment.
The three remaining Supreme Court members from that case, Chief Justice John Roberts and Associate Justices Samuel Alito and Clarence Thomas, all opposed the ruling.
“I doubt whether it would pass muster in the Supreme Court,” Ohio State University Law Professor Gregory Caldeira said of the Florida bill.
Then-Justice Anthony Kennedy argued in Kennedy v. Louisiana’s majority opinion that the Eight Amendment categorically prohibits the death penalty for all cases of child rape, while Alito’s dissent contended the amendment’s original meaning did not support that argument.
Both opinions referenced the Supreme Court’s 1977 Coker v. Georgia decision, which found that executing someone for raping an adult woman was unconstitutional. Alito said neither the Coker decision nor any other precedent demanded ruling out capital punishment in all child rape cases under the Eighth Amendment.
However, OSU Law Professor Emeritus Joshua Dressler told the DCNF that the current Supreme Court “is not as concerned with precedent as some courts in the past.” He said the court’s direction was not safely predictable, but expected that Roberts and Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson would hold a law like the one proposed in Florida to be unconstitutional.
“It is conceivable that this Court would overturn Kennedy and Coker,” Dressler said. “Child rape is a crime so heinous that I doubt they would worry about public condemnation of such a ruling. They did not worry about overruling Roe v. Wade even though the majority of Americans favor the right to abortion.”
Cato Institute research fellow Jay Schweikert expressed little doubt that, if the issue of executing child rapists were to arise for the first time today, at least six current Supreme Court justices could vote to allow it. However, he said this was a very different question from whether the court would be interested in reconsidering existing precedent on the issue.
Schweikert discussed the legal principle of “stare decisis,” or ruling based on precedent.
“The sort of ‘traditional’ stare decisis arguments I think are much stronger in this case than in a lot of other cases where the court has reconsidered its previous decisions,” he told the DCNF, referencing Roe v. Wade’s reversal for contrast. “If you look at the way that the justices describe what are the factors of stare decisis, it’s not just a question of: How wrong was the decision? It’s also a question of: Is this doctrine proven unworkable? Has it created other jurisprudential problems?”
Manhattan Institute Constitutional Studies Director Ilya Shapiro said the Kennedy v. Louisiana decision was controversial when it came down, adding, “It’s not the craziest idea to try to get it overruled.”
The Florida Senate on Tuesday passed a bill that would allow the death penalty for people who commit sexual batteries on children under age 12, sending the issue to Gov. Ron DeSantis.
Lawmakers hope the bill (HB 1297) will ultimately lead to the U.S. Supreme Court reversing a 2008 decision that barred the death penalty for people who rape children. The state House passed the bill last week.
Senate Minority Leader Lauren Book, a Davie Democrat who was sexually abused as a child, implored senators Tuesday evening to vote for the bill. She said people who sexually abuse children are “called predators for a reason, because they stalk and hunt down their prey.”
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“There is no statute of limitations on this crime (for victims),” Book said. “There is no end. It’s always with you.”
The Senate voted 34-5 to pass the bill, with the dissenting votes cast by Sen. Lori Berman, D-Boca Raton; Sen. Ileana Garcia, R-Miami; Sen. Erin Grall, R-Vero Beach; Sen. Rosalind Osgood, D-Fort Lauderdale; and Sen. Geraldine Thompson, D-Windermere. The House voted 95-14 to approve the bill, which DeSantis is expected to sign.
Sponsors of the bill have been upfront about hoping the bill will be a vehicle to get the U.S. Supreme Court and the Florida Supreme Court to reconsider legal precedents that have blocked executing rapists. In a somewhat-unusual move, the bill specifically says the Legislature finds that a 1981 Florida Supreme Court decision and the 2008 U.S. Supreme Court decision, in a case known as Kennedy v. Louisiana, were “wrongly decided.”
Senate bill sponsor Jonathan Martin, a Fort Myers Republican who is a former prosecutor, pointed to the Florida Supreme Court and the U.S. Supreme Court becoming more conservative after appointments in recent years.
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“We have a completely different (U.S.) Supreme Court makeup,” Martin told senators. “We have a completely different Florida Supreme Court makeup than when Kennedy v. Louisiana was issued. I know everybody in this room hopes that nobody is put to death for this crime. Because if someone is put to death for this crime, it means that a poor innocent child was raped.”
Under the bill, defendants could receive death sentences based on the recommendations of at least eight of 12 jurors. Judges would have discretion to impose the death penalty or sentence defendants to life in prison. If fewer than eight jurors recommend death, defendants would receive life sentences.
Currently, unanimous jury recommendations are required before judges can impose the death penalty in murder cases. But lawmakers also have passed a bill that would allow death sentences in murder cases after recommendations from eight of 12 jurors. DeSantis also is expected to sign that bill.
The death-penalty bills would affect what is known as the “sentencing phase” of cases. Juries would still need to unanimously find defendants guilty of the crimes before the sentencing phase would begin.
Osgood, who cast one of the dissenting votes Tuesday, described the child-rape bill as a “quandary” for her.
“I love kids, and I’ll do anything to protect them,” Osgood said. “But I struggle from a faith perspective. If I believe in my faith that God can redeem and save anybody, then how do I support someone getting the death penalty? And I’m just talking about me. That’s my struggle. That’s my challenge.”
But Sen. Jason Pizzo, a Hollywood Democrat who is a former prosecutor, said people who sexually abuse children can’t be rehabilitated.
“There is nothing more heinous than touching and abusing a child,” Pizzo said.
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