Despite long-standing Supreme Court precedent directing that the proposal is unconstitutional, Florida legislators this month are seeking to broaden the death penalty to non-homicide crimes. The proposal has Gov. Ron DeSantis’ full support. On Tuesday, the Florida Senate Rules Committee is expected to vote on the bill, which is the bill’s last committee stop before the floor.
Specifically, the bill seeks to broaden the death penalty to sexual battery crimes against children. The bill plainly contradicts the court’s 2008 decision in Kennedy v. Louisiana, which held that punishing a defendant with death when the crime does not intentionally cause the victim’s death violates the Eighth Amendment to the U.S. Constitution.
The Supreme Court of just 15 years ago clearly forbade what Florida is now trying to do. Florida legislators say “that’s the point.” Their goal is to provide the Supreme Court with the opportunity to review Kennedy, at which point both Gov. DeSantis and Florida legislators are confident the court, “in its current iteration,” would overturn Kennedy. Emphasizing the perceived ideological changes on the court since 2008, state Sen. Jonathan Martin (the Senate bill’s sponsor) argued that Justice Samuel Alito’s dissenting opinion in Kennedy—joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas—opened the door to this legislation. In light of Alito’s dissent and the current court’s “ideological framework,” Sen. Martin believes that the “new” court would “be in favor” of this legislation. Similarly, state Rep. Jessica Baker (the House bill’s sponsor) said she “welcome[s]” a constitutional challenge and is “hopeful” the court would “recede” from its “improperly decided” opinion in Kennedy.
When asked late last month if the bill is unconstitutional, Rep. Baker responded that “fifteen years of wrongly decided caselaw is not persuasive” to her. She previously argued that Kennedy is ripe for reconsideration because the majority’s decision was not “based on any law” and did not point to any statute or constitutional provision for its basis but was, instead, based on the majority’s “independent judgment.” That statement is far from accurate. As testimony for the Florida Association of Criminal Defense Lawyers clarified at the committee hearing, the majority decision in Kennedy was grounded in the cruel and unusual punishment clause of the Eighth Amendment.
Of course, the legislators’ blatant disregard for precedent undermines the bedrock of our court system—the theory of stare decisis. Worse, legislation attacking precedent undermines our system of government, which is grounded on a separation of powers. When state Rep. Michael Gottlieb asked in a committee hearing late last month if this bill poses separation of powers issues, Rep. Baker said no, though offered no support for her position. Yet, these efforts deliberately undercut the long-standing work of the judiciary in an effort to achieve political gain.
Of course, there’s a good reason state legislators now think they can pass laws ignoring long-standing Supreme Court precedent and rely on the court’s recently changed supermajority to demolish long-standing precedent. Indeed, that is exactly what happened in 2021 with the Texas abortion bounty bill, S.B. 8, and again last year when the court overturned its long-standing precedent establishing the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. With Dobbs in the background, Florida’s legislators are confident this court would be similarly willing to undo Kennedy and expand the constitutional boundaries of capital punishment to make way for this legislation.
Even if the legislators’ speculations about the court’s views prove true, the bills still pose constitutional concern. With this legislation, Florida will be an extreme outlier in capital punishment. Just the proposal alone marks a stark difference to other legislation pending around the country—for example, Alabama’s proposal to raise their jury recommendation requirement for a capital sentence to unanimity and Ohio’s abolition proposal. Perhaps more concerning is the idea that child sexual battery is just the beginning to a “slippery slope” of expanding the death penalty to non-homicide crimes—as Rep. Gottlieb suggested at the committee hearing late last month.
Absolutely no one denies the heinous and atrocious nature of child sexual battery offenses. Nor is it denied that these crimes should be harshly punished. But imposing an unconstitutional penalty that strains the state’s resources is just not the answer. As we have explained, just one death sentence costs the state millions of dollars more than a sentence of life in prison without parole. Even at its current population of just under 300, Union Correctional Institution—which houses Florida’s death row—is severely understaffed. The state has had to deploy the National Guard just to meet its bare minimum staffing requirements at UCI.
As to the victims, each case—including any hypothetical “test case” used to challenge Kennedy—will undoubtedly cause extreme emotional pressure. As noted at the committee hearings, the abuser in child sexual assault cases is most often a family member or close family friend. As a result, the living child victim—in addition to the trauma from the abuse—would bear the weight of the perpetrator being subject to a death sentence and suffer through the decades of uncertainty and appeals that are unique to capital punishment.
A sentence of life without parole is a harsh and severe punishment, including for a person convicted of child sexual abuse. Instead of spending millions of dollars to possibly change long-standing precedent, Florida’s resources are much better spent trying to protect our children from the abuse in the first place and ensuring survivors have access to mental health treatment and the proper support following the offense. That is how Florida can end the cycle of violence.