Legal fight expected over Florida bill allowing death penalty for child rapists

By 
 April 24, 2023

Despite not having declared any plans to seek the Republican Party's nomination next year, Florida Gov. Ron DeSantis has been in an increasingly heated battle with former President Donald Trump.

However, recent developments suggest that DeSantis' next battle could be with the United States Supreme Court. 

Bill would permit death penalty for child rapists

According to the Daily Caller, DeSantis is expected to sign CS 1297, a piece of legislation under which those convicted of sexual battery against a child aged 12 or younger will be eligible for the death penalty.

Yet as the Daily Caller noted, the bill runs afoul of Kennedy v. Louisiana, a 2008 Supreme Court ruling which found that executing child rapists constitutes cruel and unusual punishment under the Eighth Amendment.

While DeSantis argued during a recent appearance on the "Good Morning Orlando" podcast that the Supreme Court would consider a challenge to Kennedy's holding, legal observers remain divided over how the justices will react.

Cully Stimson is a senior legal fellow with the Heritage Foundation, and he told the Daily Caller, "I wouldn’t bet on it that the court is willing to take up this decision."

Experts divide over how Supreme Court will react

"The only reason they would grant cert is if they have a minimum of five or more to overrule the case. So I don’t think it’s a fait accompli at all even though the personnel has changed," he added.

Ohio State University Law Professor Gregory Caldeira also expressed skepticism, saying, "I doubt whether it would pass muster in the Supreme Court."

Others experts aren't so convinced, however, and they include fellow Ohio State University Law Professor Emeritus Joshua Dressle.

He pointed out that the Supreme Court's current lineup "is not as concerned with precedent as some courts in the past" and suggested that it may even do away with Coker v. Georgia.

Court more conservative than it was when Kennedy was decided

In that case, the nation's highest judicial body ruled that execution cannot be used as punishment for the rape of an adult woman.

"It is conceivable that this Court would overturn Kennedy and Coker," Dressle told the Daily Caller. "Child rape is a crime so heinous that I doubt they would worry about public condemnation of such a ruling. "

Dressle went on to recall how the Supreme Court was willing to overturn Roe v. Wade last year despite widespread support for abortion.

Manhattan Institute Constitutional Studies Director Ilya Shapiro agreed, saying, "It’s not the craziest idea to try to get it overruled. On one hand, the court is more conservative. On the other, Chief Justice Roberts and Justice Kavanaugh would only vote to overturn if they thought it was 'egregiously' wrong."

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