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May 1, 2023

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our 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 Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

May 1, 2023 at 06:04 PM | Permalink


You might be right that they are ready to take it up. IMO, this crime should not be death-eligible. For one thing, we don't want the criminal thinking "I'm already eligible for the DP, so killing my victim won't make my situation any worse."

Posted by: William C Jockusch | May 1, 2023 6:39:15 PM

"I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy."


Kennedy would get overruled 6-3 by the existing Court.

Posted by: Bill Otis | May 1, 2023 7:52:01 PM

I already have a cigar waiting when SCOTUS guts the Chevron deference (taken up today), so I guess I’ll need a bottle of bourbon ready in a couple of years for this one too.

Posted by: TarlsQtr | May 1, 2023 10:05:33 PM

I just double-checked timeline of Kennedy case, and crime was committed in early 1998, cert granted (on direct appeal) in early 2008. Various factors surely influenced the timing, but that suggestes even for a crime committed in late 2023, there might not be a case a new capital child rape case before SCOTUS until the early 2030s. We might (or might not) have some personnel transitions by that time.

As for (already weakened) Chevron deference, it will be interesting to see if/how another ruling in this space further disrupts the current operation of the federal sentencing guidelines. There certainly are more than a few shrewd federal defense attorneys who will also be smoking a cigar if agency deference soon takes yet another hit from SCOTUS.

Posted by: Doug B | May 2, 2023 5:00:36 AM

As a logistical point, could a trial court really impose a death sentence notwithstanding Kennedy, even if only to set up a test case? Seems to me that a trial judge acting in accordance with the Supremacy Clause couldn’t follow that part of the statute.

Posted by: Denver AFPD | May 2, 2023 7:54:35 AM

You might be right that they are ready to take it up. IMO, this crime should not be death-eligible. For one thing, we don't want the criminal thinking "I'm already eligible for the DP, so killing my victim won't make my situation any worse."

Maybe--but what happens to baby-rapers in prison is a big reason why the kids are killed.

Posted by: federalist | May 2, 2023 10:31:37 AM


That’s an incredibly small price to pay for putting the power back into the hands of those who are supposed to have it. Message to Congress: Do your job.

I’m sure the founders never considered that a branch of government would so eagerly give up their power to another branch.

Do you believe this would impact executive orders at all since the agencies end up creating the final rules and enforcing them?

Posted by: TarlsQtr | May 2, 2023 11:47:28 AM

Thinking about the theoretical aspects of what it would take to get to the U.S. Supreme Court (and not having read the full new statute and how it fits in the death penalty scheme in Florida).

At the trial level:

1) The prosecutor must make the decision to seek the death penalty despite the ruling in Kennedy. I know that there is some ability in Florida to get around a recalcitrant prosecutor, but that will undoubtedly limit the number of cases in which Florida seeks the death penalty.

2) The judge must deny any motion to dismiss/strike the aggravating circumstances. Since that is a pre-trial ruling, I don't know what mechanism exists to challenge such a ruling in Florida.

3) The jury must convict of the child sex offense (which is a rather difficult trial even without death qualification).

4) The jury must recommend death (or, at least, find the statutory aggravating circumstances and hang on penalty).

5) The judge must decide to impose death (or, at least, find that but for Kennedy he would have imposed death).

Only if you get through all five of those preliminary trial level matters would you have a death sentence which could be reviewed on direct appeal or habeas appeal. Assuming that Florida courts followed the last binding ruling of the U.S. Supreme Court, the U.S. Supreme Court would get the case on direct appeal. If the Florida courts ignored Kennedy, the case, in theory, might arise in habeas. (I could see not raising that issue on certiorari as a strategic move by defense counsel in the hopes that, by the time that habeas concludes, the personnel on the Supreme Court would have switched again.)

Posted by: tmm | May 2, 2023 1:08:11 PM

Hard to look at the Supreme Court now without cringing. Won't even abide by the Judicial Cannon of Ethics that all other judges follow. Shame, shame, shame.

Posted by: anon | May 2, 2023 1:29:12 PM


Utter nonsense. There is already a remedy for removing an unethical justice.

This push is purely political. The “cringe” is from Congressional Dems trying to insert themselves into the business of a co-equal branch.

Posted by: TarlsQte | May 2, 2023 2:30:34 PM

Master Tarls, I know relatively little about administrative law or executive orders beyond the borders of criminal justice. This comes to matter in the context of the federal sentencing guidelines because a few circuit court have concluded that some guidelines' "commentary" that serves to enhance the punitiveness of the guidelines themself are improper/inapplicable under recent SCOTUS precedents.

Posted by: Doug B | May 2, 2023 4:40:33 PM

Master Tarls writes: "There is already a remedy for removing an unethical justice." A remedy that has never been used: to impeach a Supreme Court Justice. Give me a break.

Posted by: Anon | May 7, 2023 11:48:04 AM


Then what would you do in a manner that is constitutional?

BTW, two SCOTUS members have been impeached with one of them resigning.

Posted by: TarlsQtr | May 8, 2023 2:50:00 PM

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