On May 1, 2023, the state of Florida adopt­ed leg­is­la­tion allow­ing the death penal­ty for sex­u­al abuse of a child where no death occurred. This statute is uncon­sti­tu­tion­al under the U.S. Supreme Court’s rul­ing in Kennedy v. Louisiana (2008). Excerpts from that opin­ion and from an ami­cus brief cit­ed by the Court follow:

Excerpts from KENNEDY v. LOUISIANA (2008): Opinion of the Court

STANDARDS OF DECENCY

“Evolving stan­dards of decen­cy must embrace and express respect for the dig­ni­ty of the per­son, and the pun­ish­ment of crim­i­nals must con­form to that rule.”

“Evolving stan­dards of decen­cy that mark the progress of a matur­ing soci­ety coun­sel us to be most hes­i­tant before inter­pret­ing the Eighth Amendment to allow the exten­sion of the death penal­ty, a hes­i­ta­tion that has spe­cial force where no life was tak­en in the com­mis­sion of the crime. It is an estab­lished prin­ci­ple that decen­cy, in its essence, pre­sumes respect for the indi­vid­ual and thus mod­er­a­tion or restraint in the appli­ca­tion of capital punishment.”

RISK OF DEHUMANIZING PUNISHMENT

“When the law pun­ish­es by death, it risks its own sud­den descent into bru­tal­i­ty, trans­gress­ing the con­sti­tu­tion­al com­mit­ment to decen­cy and restraint.”

BASIC HOLDING

“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.”

NATIONAL CONSENSUS

“The evi­dence of a nation­al con­sen­sus with respect to the death penal­ty for child rapists, as with respect to juve­niles, men­tal­ly retard­ed offend­ers, and vic­ar­i­ous felony mur­der­ers, shows divid­ed opin­ion but, on bal­ance, an opin­ion against it.”

“[N]o indi­vid­ual has been exe­cut­ed for the rape of an adult or child since 1964, and no exe­cu­tion for any oth­er non­homi­cide offense has been con­duct­ed since 1963.”

INCREASING HARM TO THE CHILD

“It is not at all evi­dent that the child rape victim’s hurt is less­ened when the law per­mits the death of the per­pe­tra­tor. Capital cas­es require a long-term com­mit­ment by those who tes­ti­fy for the pros­e­cu­tion, espe­cial­ly when guilt and sen­tenc­ing deter­mi­na­tions are in mul­ti­ple pro­ceed­ings. In cas­es like this the key tes­ti­mo­ny is not just from the fam­i­ly but from the victim herself.”

“During for­ma­tive years of her ado­les­cence… (the vic­tim) was required to dis­cuss the case at length with law enforce­ment per­son­nel. In a pub­lic tri­al she was required to recount once more all the details of the crime to a jury as the State pur­sued the death of her stepfather.”

RISK OF MISTAKE

“There are, more­over, seri­ous sys­temic con­cerns in pros­e­cut­ing the crime of child rape that are rel­e­vant to the con­sti­tu­tion­al­i­ty of mak­ing it a cap­i­tal offense. The prob­lem of unre­li­able, induced, and even imag­ined child tes­ti­mo­ny means there is a ​‘spe­cial risk of wrong­ful exe­cu­tion’ in some child rape cases.”

RISK OF ENDANGERING THE VICTIM

“In addi­tion, by in effect mak­ing the pun­ish­ment for child rape and mur­der equiv­a­lent, a State that pun­ish­es child rape by death may remove a strong incen­tive for the rapist not to kill the vic­tim. Assuming the offend­er behaves in a ratio­nal way, as one must to jus­ti­fy the penal­ty on grounds of deter­rence, the penal­ty in some respects gives less pro­tec­tion, not more, to the vic­tim, who is often the sole wit­ness to the crime.” 

SUMMARY

“Each of these propo­si­tions, stand­ing alone, might not estab­lish the uncon­sti­tu­tion­al­i­ty of the death penal­ty for the crime of child rape. Taken in sum, how­ev­er, they demon­strate the seri­ous neg­a­tive con­se­quences of mak­ing child rape a cap­i­tal offense. These con­sid­er­a­tions lead us to con­clude, in our inde­pen­dent judg­ment, that the death penal­ty is not a pro­por­tion­al pun­ish­ment for the rape of a child.”

AMICUS BRIEF OF THE NATIONAL ASSOCIATION OF SOCIAL WORKERS:

INCREASING UNDERREPORTING OF THE CRIME

“Executing child rapists will like­ly wors­en the prob­lem of under­re­port­ing that already frus­trates efforts to com­bat child sex­u­al offens­es. The over­whelm­ing major­i­ty of sex­u­al abuse is com­mit­ted by fam­i­ly mem­bers or close fam­i­ly friends. These rela­tion­ships lead many vic­tims — as well as fam­i­ly mem­bers who wit­ness or sus­pect the abuse — to remain silent rather than to report the crime.”

MAGNIFYING THE TRAUMA

“Louisiana’s law would mag­ni­fy the trau­ma that child vic­tims expe­ri­ence in the crim­i­nal jus­tice process. Even ordi­nary tri­als are high­ly trau­mat­ic for child vic­tims. Death penal­ty tri­als, with their vast­ly increased pub­lic­i­ty, expan­sive hear­ings, and mul­ti­ply­ing pre-tri­al and post- con­vic­tion pro­ceed­ings, will inten­si­fy that trau­ma by increas­ing the scope and dura­tion of the child victim’s par­tic­i­pa­tion in the crim­i­nal jus­tice sys­tem. Not only is increased expo­sure to tri­als known to hin­der child vic­tims’ heal­ing process, but the impo­si­tion of a death sen­tence will add to the guilt child vic­tims some­times feel and may pre­clude the pos­si­bil­i­ty of a future ther­a­peu­tic meet­ing between the vic­tim and his or her abuser.”

For fur­ther infor­ma­tion about this case, see DPIC’s page on Kennedy v. Louisiana.

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