GOP lawmakers want to challenge U.S. Supreme Court on the death penalty for child rape

Gov. Ron DeSantis announced in January as part of his “law and order” agenda for the 2023 session that he wanted capital punishment for anyone who sexually assaults a child. That’s despite the fact that the U.S. Supreme Court ruled in 2008 that the ban on cruel and unusual punishment in the U.S. Constitution bars the death penalty for child rape.

Flash forward to Tuesday afternoon in Tallahassee, where Duval County Republican Jessica Baker introduced her proposal (HB 1297) that would subject adults who commit sexual battery or attempted sexual battery against a child under the age of 12 with the possibility of the death penalty.

The proposal establishes statutory aggravating factors and mitigating circumstances specific to capital sexual battery. Under the legislation, a jury must determine if the state has proven beyond a reasonable doubt the existence of at least one aggravating factor. If the jury does not unanimously find at least one aggravating factor, the defendant is ineligible for a death sentence.

At least eight of the 12 jurors must recommend a death sentence. If at least eight jurors do not recommend death, the defendant would be sentenced to life in prison without parole.

Several Democrats on the House Criminal Justice Subcommittee said flat out that the proposal was unconstitutional, but Baker said that’s precisely why she filed the bill – to challenge that U.S. Supreme Court ruling.

“That’s the point of the bill,” she said. “The bill states that Kennedy v. Louisiana is wrongfully decided, and an infringement on our state’s power to decide the punishment for the most heinous crimes, and I believe that there is no hurdle too high to protect our kids.”

Pinellas/Hillsborough County Democrat Michele Rayner-Goolsby, a criminal defense attorney, said the bill put her in an “untenable situation.”

“If I vote down on it, the message will be from the other side that I support child rape,” she said. “If I vote up on it, the message will be as a lawyer I no longer respect the preeminence of the Supreme Court. So I don’t appreciate being put in these kinds of positions.”

Republican Berny Jacques, a former prosecutor in Pinellas and Pasco counties, brought up previous court decisions like Dred Scott (where the court decided that all people of African ancestry – slaves as well as those who were free- could never become citizens of the U.S.), Plessy v. Ferguson (where the court upheld a Louisiana state law that allowed for “equal but separate for the white and colored races.”) and even Roe v. Wade that ended a federal right to an abortion last year – all to prove the point that such rulings have ultimately been overturned.

“We need courageous people to challenge unjust laws,” Jacques said. “Laws that are no longer part of our culture and are no longer reflective of the people who made these decisions and gave out these opinions in black robes.”

Lake County Republican Taylor Michael Yarkosky said that he believed the proposal would definitely serve as a deterrent for those who would do such a horrible act. “The world that we are living in is changing. Justices change. Case law changes.”

The panel approved the measure on Tuesday.

Palm Beach County Rep. Joe Casello, a Democrat, voted for it, but said that he still had reservations because of the provision that would allow just eight jurors to vote to put a child rapist to death (similar to another proposal floating through the Legislature which would change current law that a unanimous jury is needed to find for the death penalty to just eight jurors).

“I think there should be more scrutiny on that,” he said. “I think maybe 10-2 I could live with. I believe that gives a fairer picture of what we’re trying to do to an individual.”

The bill has two more stops before it can get to the House floor. Its Senate companion has two more committees to go through as well before it can go to a full vote of the body.