Could the Supreme Court end up revisiting its precedent concerning the death penalty? That is the question as lawmakers at Tallahassee — and Governor DeSantis —  ready the passage of a law allowing the death penalty for a case involving child rape, even if the victim survives.   

That would seem to set up a direct confrontation with the United States Supreme Court, which in Kennedy v. Louisiana in 2008 struck down a state law to hold that only the taking of a life can trigger the state’s imposition of the ultimate penalty. The case involved a stepfather who raped, but did not kill, his stepdaughter.

The court allowed that the crime that formed the predicate for the case “cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted” on the rapist’s victim “or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.” Yet the court blocked capital punishment.

That 5-to-4 decision, with the court’s right flank in dissent, held that if no life was lost, the Eighth Amendment’s ban on “cruel and unusual punishment” prohibited execution, as it does for juveniles and those Kennedy calls “mentally retarded.” A separate case, Coker v. Georgia, from 1977, had already ordained that the death penalty must be “proportional.” 

The high court has been guided in its understanding of what amounts to “cruel and unusual” by the “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” A sense of what is proportional is evolving, rather than static, and reflects norms that “currently prevail” rather than those that held with ratification of the Eighth Amendment in 1791.

The majority opinion, penned by Justice Anthony Kennedy, detected a “national consensus” against the death penalty in such cases, with only eight states allowing it in the pre-Kennedy regime. Citing this “consensus and our own independent judgment,” the court ruled 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.”   

In dissent, Justice Samuel Alito decried a rule that takes the death penalty off the table “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime,” and “no matter how much physical or psychological trauma is inflicted.”

That dissent has now found legislative expression. The Florida bill, filed last week, would allow for juries to recommend the death penalty for those convicted of sexual battery on children under the age of 12. The bill calls Kennedy and a 1981 equivalent from the Florida supreme court “wrongly decided” and an “egregious infringement of the states’ power to punish the most heinous of crimes.”

This rhymes with Justice Alito’s dissenting language from Kennedy, where he notes that the “harm that is caused to the victims and to society at large by the worst child rapists is grave,” and therefore plausibly death-deserving. Turnover on the court has changed its composition, and Sunshine State lawmakers appear aiming to replicate with Kennedy the fate of Roe v. Wade.

The bill’s sponsors — Representative Jessica Baker and Senator Jonathan Martin —  received their marching orders from the governor’s house. In January, Mr. DeSantis mused that “we do not believe the Supreme Court, in its current iteration, would uphold” Kennedy. Mr. DeSantis vowed to explore “ways to facilitate some capital trials if you have the worst of the worst.” This bill appears to be the primary thrust of such efforts.

Mr. DeSantis went on to say regarding those convicted of sexual crimes toward minors that “these people don’t care. They are unrepentant,” and the “only appropriate punishment that would be commensurate to that would be capital.” One of the representatives sponsoring the bill opined that sexual battery is worse than murder.  

Florida is looking to rewrite its death penalty profile. It is angling for another Supreme Court challenge in another sense as well. Mr. DeSantis has called for an end to his state’s requirement that juries be unanimous in voting to execute. In January, he told the Florida Sheriffs Association, “fine, have a supermajority,” which he speculated could be “maybe eight out of 12 or something.”

If such a change were to come to pass — it too has already surfaced in the legislature — Florida would join Alabama as the only states not to require unanimity. Over the millennia, though, unanimity has not always been required.

On the contrary, the great rabbinical tribunal known as the Sanhedrin was prohibited from handing down a death sentence if the judges were unanimous. The Sanhedrin feared that unanimity among the judges was a signal that the accused might not have been given an adequate defense.

Separately, a Supreme Court decision from 2018, Hurst v. Florida, decided by an 8-to-1 vote that the Constitution was violated by a Florida law that vested in the judge rather than the jury the decision to hand down a capital sentence. Justice Alito was the lone dissenter.