TODAY: Florida's new capital sex crime bill goes into effect.
Here's what the new bill says, what litigation will likely unfold, and archival material showing discussion between U.S. Supreme Court justices on related issues.
Today, Florida’s new capital sex crime bill goes into effect. Under this new law, those convicted of certain sex crimes against children under the age of 12 are subject to a sentence of death.
The law includes its own capital sentencing scheme under which a defendant may be sentenced to death if a jury (a) finds unanimously that two aggravating factors have been proven beyond a reasonable doubt, and (b) recommends death by at least a vote of 8-4.
NOTE: This is different than the capital sentencing scheme for capital murder, which requires that the jury find unanimously only one aggravating factor has been proven beyond a reasonable doubt.
Conflict with Precedent
In passing this law, the Legislature explicitly recognized that it conflicts with the Florida Supreme Court’s decision in Buford v. State (1981) and the U.S. Supreme Court’s decision in Kennedy v. Louisiana (2008).
Buford v. State (Fla. 1981)
In Buford, the defendant was convicted of “sexual battery upon a child under eleven years of age” and sentenced to death.1 In addressing the viability of the sentence of death, the Florida Supreme Court recognized that, although the U.S. Supreme Court held in Coker v. Georgia (1977) that death was a disproportionate penalty for the crime of rape on an adult, the U.S. Supreme Court had not addressed whether the death penalty was a valid punishment “for the rape of a child under eleven years of age.”2
At the time Buford was decided, “Georgia was the only state which authorized a sentence of death when the rape victim was an adult woman. Only two other jurisdictions (Florida and Mississippi) provided capital punishment when the victim was a child.”3
Drawing from the U.S. Supreme Court’s decision in Coker, the Florida Supreme Court held “that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.”4
Kennedy v. Louisiana (U.S. 2008)
In Kennedy, the U.S. Supreme Court held that it violates the Eighth Amendment and Fourteenth Amendment to impose a sentence of death for a crime that does not intentionally cause the victim’s death:5
[O]ur holding is 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.
In its conclusion, the Court explained:
The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.6
Throughout the legislative process, legislators relied on Justice Alito’s dissenting opinion in Kennedy (joined by Chief Justice Roberts and Justices Scalia and Thomas) for support for this new law.
Litigation about the constitutionality of this statute is bound to begin soon.
Before Kennedy
A look at prior decisions and archival materials shows that this issue was discussed long before the Court’s decision in Kennedy.
Coker v. Georgia (1977)
In Coker v. Georgia (1977), the U.S. Supreme Court “held that the punishment of death for the rape of an adult woman violates the cruel and unusual punishment clause of the Eighth Amendment because it is grossly disproportionate and excessive in relation to the crime committed.”7
In his concurring opinion in Coker, Justice Lewis F. Powell, Jr. wrote that he “would not prejudge the issue of capital punishment in the case of an outrageous rape resulting in serious, lasting harm to the victim.”8 Indeed, discussing Coker, Justice Powell wrote a Memo to Justice White reflecting his intention to write this separate opinion related to how the effects of rape can affect the victim:
Coker was discussed at length in the Florida Supreme Court’s decision in Buford and in Justice Alito’s dissenting opinion in Kennedy.
*Neither Justice Powell nor Justice White were on the Court when Kennedy was decided.
Lockett v. Ohio (1978)
In Lockett v. Ohio (1978), the U.S. Supreme Court addressed “whether Ohio violated the Eighth and Fourteenth amendments by sentencing Sandra Lockett to death pursuant to a statute that narrowly limits the sentencer's discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors.”9 The Court reversed Lockett’s death sentence, holding:
The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.
Justice White’s separate concurring in part, dissenting in part opinion, however, addresses the Kennedy issue—as he did in Roberts. Before the opinion came out, in a Memo from Justice White to Chief Justice Warren Earl Burger related to Lockett, Justice White indicated his agreement with the sentiment that ultimately became the holding in Kennedy:
While Lockett presented this issue, it was not addressed in the plurality decision. Indeed, consistent with his Memo, Justice White wrote in his separate opinion:
I nevertheless concur in the judgments of the Court reversing the imposition of the death sentences because I agree with the contention of the petitioners, ignored by the plurality, that it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim.10
*Neither Justice White nor Justice Burger were on the Court when Kennedy was decided.
News Articles
Prior TFDP Coverage of the Capital Sex Crime Statute
TFDP covered the entire legislative process that resulted in this new statute. All of the posts are available in the Archive, which is searchable. Here are a few:
TFDP’s post discussing the proposed bills
TFDP’s post from when Gov. DeSantis signed the bill
TFDP’s post from when the Senate approved the bill
Also, I spoke about this new law on the Summarily podcast back in May. Check it out here.
Buford v. State, 403 So. 2d 943, 944 (Fla. 1981). There was a second death sentence for first-degree murder, which made the holding discussed herein more of an “academic” holding, as the Court stated.
Id. at 950.
Id.
Id. at 951.
Kennedy v. Louisiana, 554 U.S. 407, 446-47 (2008).
Buford, 403 So. 2d at 950.
Id. at 951.
Lockett v. Ohio, 438 U.S. 586, 589 (1978).
Id. at 624 (White, J., concurring in part, dissenting in part, concurring in judgment).
The age is 12, not 14