Can Florida legally expand the death penalty to convicted child rapists? by Tanner Stening May 3, 2023 Share Facebook LinkedIn Twitter Florida Gov. Ron DeSantis. Photo by Ryan Sun/The Deseret News via AP Florida Gov. Ron DeSantis signed a bill on Monday that would permit the execution of convicted child rapists in his state. Experts were quick to point out that the new law flies in the face of Supreme Court precedent that makes it unconstitutional to seek capital punishment in cases that do not involve a murder. The legislation would allow Florida prosecutors to seek the death penalty for an adult who is convicted of sexual battery of a child under 12. The new law, which is set to take effect on Oct. 1, requires only an 8-4 vote to execute by a Florida jury. On its face, the law breaks with several Supreme Court precedents, Northeastern legal experts say. In 2008, the U.S. Supreme Court in Louisiana v. Kennedy ruled that the death penalty cannot be applied in the prosecution of non-homicidal child sex offenses, stating that it would violate the Eighth Amendment’s Cruel and Unusual Punishment Clause. Under Supreme Court case law, all criminal jury trials require unanimous verdicts, says Daniel Medwed, Northeastern University distinguished professor of law and criminal justice. In capital cases, where the death penalty is in play, the defendant’s guilt or innocence would be determined first, then a separate trial is held to determine whether to execute or incarcerate. “Recent Supreme Court precedent has clarified that all criminal jury trials on guilt or innocence must be unanimous, and every state now has that,” Medwed tells Northeastern Global News. That precedent, Ramos v. Louisiana, holds that non-unanimous jury verdicts are unconstitutional. That case was decided in 2020. “Also, virtually every state with the death penalty makes the second sentencing phase of a capital case unanimous, but Alabama doesn’t—I believe it allows a death sentence upon a 10-2 vote, so Florida would still be pushing things, trying to invite a legal challenge, in allowing an 8-4 verdict,” Medwed says. Northeastern legal experts suggested that DeSantis and Florida Republicans, who have a supermajority in both chambers in the Florida legislature, may be trying their luck at an unlikely Supreme Court reexamination of the issue. “DeSantis is clearly trying to goad the Supreme Court into revisiting that seemingly settled question, perhaps emboldened by the presence of a conservative majority, and the Court’s abandonment of stare decisis in overturning Roe v. Wade,” Medwed says. “He’s just playing for votes,” says Rose Zoltek-Jick, associate teaching professor and associate director of the Civil Rights and Restorative Justice Project at Northeastern. “It’s just another way in which he is flouting the rule of law.” Another expert expressed concern about how the high court might review a challenge to the law. “Given the adverse precedents from the Supreme Courts of the U.S. and Florida, it’s easy to view the move by Governor DeSantis and the GOP-dominated legislature as nothing more than a dead-on-arrival provocation,” says Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law. “Yet given the present composition of SCOTUS and its willingness to abandon precedent, the expansion of the death penalty—increasingly abandoned by prosecutors and jurors—is imaginable,” Meltsner says. Tanner Stening is a Northeastern Global News reporter. Email him at email@example.com. Follow him on Twitter @tstening90.