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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