Current Precedent
On August 25, 2003, Patrick Kennedy was found guilty of raping his 8-year-old stepdaughter and was sentenced to death by a jury of his peers in a Louisiana court.[i] Kennedy appealed. He argued that under the Eighth Amendment of the U.S. Constitution, the death penalty was cruel and unusual punishment because the punishment was disproportionate to the crime of child rape.[ii]
In 2007, the Louisiana Supreme Court surveyed 38 jurisdictions that permitted capital punishment. The state court found that there was a growing trend of jurisdictions imposing capital punishment on non-homicide cases “5 [of which] provide it for child rape … the most heinous of all non-homicide crimes.”[iii] The court concluded that “the death penalty for the rape of a child under twelve is not disproportionate” and affirmed Kennedy’s death sentence.[iv] The United States Supreme Court disagreed.
The U.S. Supreme Court clarified that “[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard remains the same, but its applicability must change as the basic mores of society change.”[v] The Court found that between 1925 and 2008, there was a downward trend of state and federal statutes authorizing the death penalty for the rape of a child or an adult from 20 jurisdictions to six states (four of which only permits the death penalty if the offender has a previous rape conviction).[vi]
To illustrate the downward trend, the U.S. Supreme Court mentioned that in 1981, the Florida Supreme Court had ruled that “a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment,” thus declaring their own state’s statute unconstitutional.[vii] The most compelling fact was that the U.S. Supreme Court found that “no execution for any … non-homicide offense has been conducted since 1963.”[viii] The Court held that currently there was “a consensus against the death penalty for child rape,” therefore “in its independent judgment, … [while] rape [has a] permanent and devastating impact on a child … because the crime did not result in the victim’s death, … it does not follow that death is a proportionate penalty for child rape.”[ix] The Supreme Court’s ruling on this case invalidated the laws of the six states that permitted the death penalty for child rape.[x]
Florida’s Challenge
On October 1, 2023, the Florida Legislature amended Florida Statue 794.011, Sexual Battery, to reintroduce the death penalty for “[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age.” The Florida Legislature declared that “Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly decided and an egregious infringement of the state’s power to punish the most heinous of crimes.”[xi]
On December 14, Fifth Judicial Circuit State Attorney William Gladson filed a Notice of Intent to Seek Death Penalty after a man from Leesburg, Florida was charged with six counts of child sexual battery and three counts of promoting a sexual performance of a child.[xii] Florida Governor Ron DeSantis announced his full support, stating that this case “will be the first case to challenge SCOTUS since [he] signed legislation to make pedophiles eligible for the death penalty.”[xiii] Unfortunately, Governor DeSantis will have to wait for another opportunity to challenge the U.S. Supreme Court’s ruling on Kennedy v. Louisiana.
On February 2, 2024, the defendant accepted the State’s plea offer of life imprisonment without the possibility of parole in order to resolve his criminal case.[xiv] The State Attorney declared that reintroducing the death penalty for child rapists was effective as it took less than 100 days to resolve the case.[xv] However, despite the use of fear of the death penalty as an effective means to resolve child rapist cases sooner, a true challenge to Supreme Court precedent that has barred the death penalty for non-homicidal criminal cases would surely fail.
Between 2008 and 2023, the number of states that permitted the death penalty was reduced from 35 to 21, with six additional states that ordered a stay on executions by Executive Order.[xvi] Moreover, a 2023 Gallup poll reported that “[t]he current 53% of Americans who favor the death penalty is the lowest since 1972.”[xvii] This may be because currently, 50% of Americans say that the death penalty is applied unfairly.[xviii] As explained in Kennedy v. Louisiana, the Supreme Court declared that the death penalty was considered cruel and unusual punishment for child rape cases because there was “a national consensus against capital punishment for the crime of child rape.” Therefore, it is reasonable to conclude that because the national consensus still disfavors the death penalty for murder cases, the death penalty for the crime of child rape will not be viewed favorably.
However, in the Kennedy dissent, Justice Alito illustrated that the reason only six states have implemented the death penalty is due to a previous ruling that “has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency.”[xix] The previous Supreme Court case in question had held that the Eighth Amendment did not permit the death penalty for the crime of raping an adult woman, which state legislatures later used as their reasoning to repeal criminal statutes permitting the death penalty for child rapists.[xx] In order for Florida to succeed in challenging this precedent, more state legislatures will have to join in numbers and enact death penalty statutes for child rape cases, turning the ‘national consensus’ to one that supports the death penalty for the heinous crime of raping a child under the age of 12.
[i] See State v. Kennedy, 957 So. 2d 757, 760 (La. 2007).
[ii] See id. at 782; see U.S. Const. amend. VIII. (declaring that “cruel and unusual punishments [shall not be] inflicted.”).
[iii] Kennedy, 957 So. 2d at 785 (listing Oklahoma, South Carolina, Montana, Georgia, and Florida as the only states that impose the death penalty for sexual assault of a child).
[iv] Id. at 789.
[v] Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382 (1972)).
[vi] See id. at 423 (naming the four of the six states as Montana, Oklahoma, South Carolina, and Texas).
[vii] Buford v. State, 403 So. 2d 943, 951 (Fla. 1981).
[viii] Id. at 412.
[ix] Id.
[x] See id. at 423 (listing the states with current child rape statutes that made death penalty eligible as Louisiana, Georgia, Montana, Oklahoma, South Carolina, and Texas).
[xi] Fla. Stat. § 921.1425(1)(a).
[xii] See Indictment, Florida v. Giampa, No. 2023-CF-003029-A, https://courtrecords.lakecountyclerk.org/ShowCaseWeb/#!/ (last visited February 15, 2024) (using Case Search, input the case number into the search field, click Search and then Click on the hyperlinked Case Number. The new page that shows up will have multiple fields, click on Dockets and then click on Page 2. The Page will show on line 33 the hyperlinked Indictment, which is the charging document that shows all of the counts against Mr. Giampa); see also James Call, Florida prosecutor announces first death penalty case under new child rape law, Tallahassee Democrat (Dec. 15, 2023, 12:06 p.m. ET) https://www.tallahassee.com/story/news/local/state/2023/12/15/florida-man-first-death-penalty-indicted-child-rape-test-case-new-law/71930977007/.
[xiii] Ron DeSantis, @GovRonDeSantis, Twitter (Dec. 14, 2023, 6:08 PM) https://twitter.com/GovRonDeSantis/status/1735436636773630459.
[xiv] See Giampa Sentenced To Life In Prison For Sexual Battery, Off. of The State Attorney, Fifth Judicial Circuit, Fla. (Feb. 2, 2024) https://www.sao5.org/GIAMPA-SENTENCED-TO-LIFE-IN-PRISON-FOR-SEXUAL-BATTERY-1-19667.html.
[xv] See id.
[xvi] See State by State, Death Penalty Info. Center, https://deathpenaltyinfo.org/states-landing (last visited Feb. 16, 2024).
[xvii] Megan Brenan, New 47% Low Say Death Penalty Is Fairly Applied in U.S. Gallup (Nov. 6, 2023) https://news.gallup.com/poll/513806/new-low-say-death-penalty-fairly-applied.aspx
[xviii]See id.
[xix] Kennedy, 554 U.S. at 448.
[xx] See id.
