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December 18, 2023

Possible Florida test case for new capital child rape statute now in the works

Almost eight months ago, I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?"  In that post, I wondered aloud "about the facts of any 'Kennedy test case', [and] how long it might take to get to SCOTUS."  As reported in this recent press peice, we now have a a possible test case getting started: 

In a first for the state of Florida, prosecutors in the Sunshine State will be pursuing capital punishment against a man accused of raping a child where no death occurred under a new law that runs counter to the U.S. Supreme Court’s current Eight and Fourteenth Amendment precedent.

The Fifth Judicial Circuit State Attorney Office on Thursday filed court documents stating its intent to seek the death penalty against 36-year-old Joseph Andrew Giampa, who was indicted by a grand jury on six counts of sexual battery on a child under age 12 and three counts of promoting a sexual performance of a child. According to a news release from the state attorney’s office, prosecutors want to put Giampa to death due to “the severity of the crime and its impact on the community.”

The notice filed in Lake County Circuit Court lists numerous aggravating factors, which prosecutors say implore the state to seek the death penalty. Such factors include that the crime was committed for “pecuniary gain,” it was “especially heinous,” the victim was “particularly vulnerable,” and Giampa had previously been convicted of a violent felony....

According to a probable cause affidavit obtained by Law&Crime, authorities responded on Nov. 2 to Giampa’s home about a possible sexual battery. Once there, deputies detained Giampa. In his camper, deputies said there was a computer with a video showing an adult sexually assaulting a child under 12. After the sexual assault, the assailant who was recording the attack “set the camera down” and then “walked in front of the camera.” Authorities said the adult male in the recording was Giampa. Giampa then sexually assaulted the juvenile several more times as the video continued before exiting the room as “the juvenile victim begins cleaning up in view of the camera.”

The case is certain to pose constitutional challenges as the legislation adopted and signed by Gov. Ron DeSantis earlier this year is patently contra to the Supreme Court’s 2008 case Kennedy v. Louisiana, which prohibits the death penalty as punishment “where no life was taken in the commission of the crime.”...

Of the four justices who dissented — Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — three are still on the court, while all five of those who voted in the majority have been replaced, predominantly by justices whose overall judicial ideology is far more right-leaning.

The legislation’s text explicitly states that the high court’s earlier rulings on death penalty prohibitions were “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

DeSantis already released a statement indicating his intent to take the case up with the justices. “Today, the State’s Attorney for the Fifth Judicial Circuit announced that they will seek the death penalty in a case of sexual battery against a child under age 12,” he wrote in a Facebook post. “It will be the first case to challenge SCOTUS (U.S. Supreme Court) since I signed legislation to make pedophiles eligible for the death penalty. The State’s Attorney has my full support.”

Because I do not know the intricacies of Florida criminal procedure, I do not know if there are (appealable) means for the defendant here to seek some kind of dismissal/striking of the capital aspect of these charges.  I noted in my prior post that the 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."   But is it really proper for a state judge to entertain and allow criminal charges to move forward contrary to on-point state and federal constitutional law?  (Imagine if New York passed a statute, hoping SCOTUS might change its approach to the Second Amendment since Bruen is proving problematic, that ordered state courts to enforce a problematic gun law "notwithstanding existing case law.")

Whatever the possible procedures at an early stage of Florida's capital litigation, I wonder if the defendant here may be eager to seek to plea given what sounds like damning evidence of guilty.  Indisputably guilty murderers who face capital charges often offer to plead guilty to avoid a possible death sentence, but a prosecutor must be willing to make such a plea deal.  It will be interesting to see if this local Florida prosecutor will want to persistently pursue this capital charge which is certain to come with years and years of litigation.

Prior related post:

December 18, 2023 at 05:39 PM | Permalink


Another reason to vote for Desantis.

Posted by: Bill Otis | Dec 19, 2023 12:38:10 AM

Another idiotic comment from Bill Otis. It's unbelievable that Georgetown allows a racist and moronic sadist to teach at its laws school. Bill, were you abused as a child? Does that explain your sadism?

Posted by: Mark | Dec 19, 2023 5:19:49 PM

Really, Mark? You might not support the possibility of the death penalty for child rape, but supporting that possibility does not make one idoitic or racist or moronic or sadist. I would hope one might try to explain why they might think another's policy views are unsound or unreasonable without resorting only to vitriolic name-calling.

Posted by: Doug B | Dec 19, 2023 9:08:41 PM

Mark, many law and order people like me and Bill despise racism.

Posted by: federalist | Dec 20, 2023 10:29:26 AM

Doug --

Thanks. You gotta love free speech. It does bring them out of the woodwork.

Mark --

I'll proudly plead guilty to having the same life experiences as Justices Roberts, Thomas, Scalia and Alito -- the four dissenters in Kennedy v. Louisiana. Are they too racists and sadists?

Do tell! Or even better, we can debate Kennedy v. Louisiana face-to-face. Wanna?

P.S. DeSantis won his last gubernatorial race in Florida by 19 percentage points. Is the fat majority of the Florida electorate also sadistic? And idiotic?

Posted by: Bill Otis | Dec 20, 2023 10:30:03 AM

federalist --

Just so. For example, if the country thought that black lives really matter, we would crack down hard on murder -- murder being the leading cause of death of black men under 40. The situation is a scandal, see https://ringsideatthereckoning.substack.com/p/the-klan-was-never-this-effective

I wonder what Mark has done to encourage the more robust prosecution and punishment of killers who murder blacks. Somehow, I don't think we're ever going to find out.

Posted by: Bill Otis | Dec 20, 2023 11:08:04 AM

Bill, they turn tail and run. Just like the pathetic shills for Hunter Biden.

Posted by: federalist | Dec 20, 2023 4:01:23 PM

federalist --

The ability to turn tail and run is one of the main drawbacks to an Internet blog. One thing I've noticed about you is that you take on all comers and then some. "Mark," by contrast, is going to have his spasm and disappear. My goodness!!!

Posted by: Bill Otis | Dec 20, 2023 6:40:46 PM

At least SG stays around after saying something idiotic.

Posted by: TarlsQtr | Dec 20, 2023 9:03:00 PM

In partial defense of Mark although I don’t condone his language: Bill Otis frequently comments on this site with very short, seemingly intentionally provocative statements that do not seem consistent with the viewpoint of an academic. I find it troubling that Bill would find support for expanding capital punishment beyond murder as somehow an appealing position that is another reason to support a presidential candidate. Even if one supported that position it cannot be very high on the list of important public policy issues, especially at the federal level. Desantis has a history of unnecessarily trying to make political points from increasing the saliency of divisive issues — gay rights, sex education, Disney policy, etc. Is it really consistent with teaching at an elite law school to support that sort of approach from an Ivy League-educated governor who should know better? There is something very distasteful about fake populist appeals from a politician who is a product of the very institutions that he tries to use as a political tool to make points with what I’m sure he considers the hoi poloi in private. Ron is the son of a guy who installed cable boxes but somehow although Florida State was not good enough for him and he went to Yale and Harvard Law School, it is ok to beat on those institutions and play the anti-intellectual. It all kind of stinks.

It is perhaps unsurprising that Bill Otis is a fan of this type of politician. Bill is Stanford educated but has made a career of throwing stones — often with name calling — at those who try to reform what is an often Draconian US justice system. Did anyone read the article about felony murder in last week’s New Yorker. It seems very unlikely that Desantis will take any action to address those injustices or that Bill would call for him to do so.

So, at bottom, Bill comes off too many as a sort of nasty old guy with very backwards-looking views who is not very interested in working to improve a broken system and is more interested in making quick, unlearned statements on websites, while taking a lit of pride in his academic appointment and elite background.

At bottom, Bill has done an awful lot over many decades to make enemies. His continual whining about folks reacting with anger —and sometimes harsh words — to his frequently provocative and not very considered statements does not engender a lot of sympathy.

I don’t know Bill, but judging by his comments he does not seem like a very empathetic person. And his sort of ill-considered, reflexively rightwing, unfeeling views seem an odd fit for a fine Jesuit university. I understand why Doug condemns the personal attacks. But does anyone have an example of Bill actually sticking up for underdogs in society, rather than just shouting for harsher punishment —more capital punishment, really Bill — rather than just peddling shopworn retrograde rhetoric and supporting politicians who trade in increasing the saliency of nasty culture war issues as a political strategy?

Posted by: Eric | Dec 21, 2023 4:30:11 AM

Eric, the reasons for the felony murder rule are well-established. And your attacks on DeSantis are ridiculous. Do you want third-graders taught the joy of gay anal sex? You remind me of an anti anti-communist. And I don't think DeSantis has done ANYTHING to persecute gays or deny them their Constitutional rights. As for Disney, did you really think the status quo was ok?

Posted by: federalist | Dec 21, 2023 8:45:48 AM

Because Bill can defend himself (and federalist seems eager to defend DeSantis), I just want to make the point to Eric that I surmise many "tough on crime" advocates (not unreasonably) believe that they are "sticking up for underdogs in society" when they advocate for harsh punishment in the name of crime victims and seek to advance policies that they think could help to reduce the number of crime victims. Bill notes in these comments that black men are disproportionately the victims of homicide. Child rape and sexual violence is a depressingly large problem in our society. Isn't expressing concern for the victims of these crimes and others --- even if doing so in ways you might find unsound --- an example of "sticking up for underdogs in society"?

Posted by: Doug B | Dec 21, 2023 10:24:10 AM

I second Doug’s comment.

There are no bigger “underdogs” than the victims of those he proposes to give harsh penalties.

I would claim that you support those who live by the mantra, “Might makes right,” people who use personal strength to take from law abiding citizens. These victim citizens are often (usually?) poor.

Finally, you state that Bill has said a lot over the years to make enemies. I counter that it says a lot more about the enemies than him if they can’t get beyond differences of opinion regarding CJ policy. He has also said and done a lot to make friends. I count myself as one of them.

Posted by: TarlsQtr | Dec 21, 2023 12:30:41 PM

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