Legislature seeks to expand capital punishment in Florida despite U.S. Supreme Court ruling.
Two proposed bills that would expand capital punishment to child sex crimes stand in direct contradiction to U.S. Supreme Court rulings.
In another set of proposed bills (SB 1342/HB 1297), the Florida Legislature has proposed to expand the death penalty. These bills would expand capital punishment to crimes that are not currently punishable by death—specifically, child sex crimes.
Challenging U.S. Supreme Court Precedent
At first blush, assuming you are OK with the death penalty generally, you might think, “Child sex crimes are absolutely awful. What’s the problem?”
Bills Violate U.S. Supreme Court Precedent
No one disagrees that child sex crimes are absolutely awful. But, the U.S. Supreme Court held in Kennedy v. Louisiana (2008) that the Eighth Amendment to the U.S. Constitution does not allow sentencing a defendant to death for these crimes where they do not cause the death of the victim.
In that case, as with all child sex crime cases, the defendant’s crimes were horrific. The Court recognized the absolute atrocity of the crimes, writing:
Petitioner's crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.
After convicting the defendant, the jury voted unanimously to sentence the defendant to death.
However, the U.S. Supreme Court reversed the sentence of death and held that the sentence violated the Eighth Amendment. The Court’s reasoning lies in the Eighth Amendment’s “protection against excessive or cruel and unusual punishments.”
In analyzing whether a statute or punishment violates this clause, the Court looks to the “evolving standards of decency,” which the Court explained as follows:
Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, supra, at 100, 78 S.Ct. 590 (plurality opinion). As we shall discuss, punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution. See Harmelin v. Michigan, 501 U.S. 957, 999, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infra. It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.
For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes' and whose extreme culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568, 125 S.Ct. 1183 (quoting Atkins, supra, at 319, 122 S.Ct. 2242). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court insists upon confining the instances in which the punishment can be imposed.
After reviewing history, the perceived “consensus,” and other sources, the Court concluded “that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”
Therefore, these proposed bills stand in direct violation of the Eighth Amendment.
Legislature Acknowledges the Issue
The Legislature is well aware of this contradiction and address it head on in both bills. Both bills propose legislative findings that Kennedy was wrongly decided:1
If these bills pass, it is almost certain there will be litigation about their constitutionality. That almost seems to be invited by this language.
Inconsistent Sentencing Schemes
Another confusing aspect of these bills is that they set forth a separate capital sentencing procedure for these crimes that is now different than the legislation seeking to amend Florida’s existing capital sentencing statute. In other words, if the bills were passed as they exist right now, there would be two separate statutes that set forth two different capital sentencing schemes—one for the original capital crimes and one for these new capital sex crimes.
We’ll keep you posted. Stay tuned.
The bills also state that the Florida Supreme Court’s decision in Buford v. State (1981) was wrongly decided. Buford was different than Kennedy in that the victim actually died. The trial court imposed two sentences of death—one for the murder and one for the sexual assault. The Florida Supreme Court vacated the second sentence of death because it was inconsistent with the statute directing a specific sentence for sexual assault on a child.