DeSantis Is Setting The Stage For Supreme Court Battle Over Death Penalty For Child Rapists

DeSantis Is Setting The Stage For Supreme Court Battle Over Death Penalty For Child Rapists

Trevor Schakohl on April 23, 2023

• Republican Florida Gov. Ron DeSantis is set to sign a measure to authorize the death penalty for child rapists in his state, contradicting U.S. Supreme Court precedent from 2008.
• Experts who spoke to the Daily Caller News Foundation were uncertain whether the Supreme Court would be willing to overturn its earlier ruling, with some expressing more skepticism than others.
• “Child rape is a crime so heinous that I doubt they would worry about public condemnation of such a ruling,” Ohio State University Law Professor Emeritus Joshua Dressler said.

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, while experts who spoke to the Daily Caller News Foundation were more skeptical.

“I wouldn’t bet on it that the court is willing to take up this decision,” Heritage Foundation Senior Legal Fellow Cully Stimson told the DCNF, explaining that four justices would have to “grant certiorari,” or agree to review the case. “The only reason they would grant cert is if they have a minimum of five or more to overrule the case. So I don’t think it’s a fait accompli at all even though the personnel has changed.”

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.”

“On one hand, the court is more conservative,” Shapiro told the DCNF. “On the other, Chief Justice Roberts and Justice Kavanaugh would only vote to overturn if they thought it was ‘egregiously’ wrong. It’s a smart political move for DeSantis to back this bill regardless.”