The Supreme Court has declared it unconstitutional, but Florida lawmakers approve the death penalty in child rapes

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Protesters hold signs on the corner of a busy Pinellas intersection. By Chris Young/WMNF News (23 Feb. 2023).

UPDATE: On May 1, 2023 Governor Ron DeSantis signed this bill into law, setting up a showdown between this new Florida law and prior precedent by the U.S. Supreme Court. DeSantis’ office said in a news release Monday that he is “prepared to take this law all the way to the U.S. Supreme Court to overrule judicial precedents which have unjustly shielded child rapists from the death penalty and denied victims and their loved ones the opportunity to pursue ultimate justice against these most heinous criminals.”

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — The Florida Senate on Tuesday passed a bill that would allow the death penalty for people who commit sexual battery on children under age 12, sending the issue to Gov. Ron DeSantis.

Lawmakers hope the bill (HB 1297) will ultimately lead to the U.S. Supreme Court reversing a 2008 decision that barred the death penalty for people who rape children. The state House passed the bill last week.

Senate Minority Leader Lauren Book, a Davie Democrat who was sexually abused as a child, implored senators Tuesday evening to vote for the bill. She said people who sexually abuse children are “called predators for a reason, because they stalk and hunt down their prey.”

“There is no statute of limitations on this crime (for victims),” Book said. “There is no end. It’s always with you.”

The Senate voted 34-5 to pass the bill, with the dissenting votes cast by Sen. Lori Berman, D-Boca Raton; Sen. Ileana Garcia, R-Miami; Sen. Erin Grall, R-Vero Beach; Sen. Rosalind Osgood, D-Fort Lauderdale; and Sen. Geraldine Thompson, D-Windermere. The House voted 95-14 to approve the bill, which DeSantis is expected to sign.

Sponsors of the bill have been upfront about hoping the bill will be a vehicle to get the U.S. Supreme Court and the Florida Supreme Court to reconsider legal precedents that have blocked executing rapists. In a somewhat unusual move, the bill specifically says the Legislature finds that a 1981 Florida Supreme Court decision and the 2008 U.S. Supreme Court decision, in a case known as Kennedy v. Louisiana, were “wrongly decided.”

Senate bill sponsor Jonathan Martin, a Fort Myers Republican who is a former prosecutor, pointed to the Florida Supreme Court and the U.S. Supreme Court becoming more conservative after appointments in recent years.

“We have a completely different (U.S.) Supreme Court makeup,” Martin told senators. “We have a completely different Florida Supreme Court makeup than when Kennedy v. Louisiana was issued. I know everybody in this room hopes that nobody is put to death for this crime. Because if someone is put to death for this crime, it means that a poor innocent child was raped.”

Under the bill, defendants could receive death sentences based on the recommendations of at least eight of 12 jurors. Judges would have the discretion to impose the death penalty or sentence defendants to life in prison. If fewer than eight jurors recommend death, defendants would receive life sentences.

Currently, unanimous jury recommendations are required before judges can impose the death penalty in murder cases. But lawmakers also have passed a bill that would allow death sentences in murder cases after recommendations from eight of 12 jurors. DeSantis also is expected to sign that bill.

The death-penalty bills would affect what is known as the “sentencing phase” of cases. Juries would still need to unanimously find defendants guilty of the crimes before the sentencing phase would begin.

Osgood, who cast one of the dissenting votes Tuesday, described the child-rape bill as a “quandary” for her.

“I love kids, and I’ll do anything to protect them,” Osgood said. “But I struggle from a faith perspective. If I believe in my faith that God can redeem and save anybody, then how do I support someone getting the death penalty? And I’m just talking about me. That’s my struggle. That’s my challenge.”

But Sen. Jason Pizzo, a Hollywood Democrat who is a former prosecutor, said people who sexually abuse children can’t be rehabilitated.

“There is nothing more heinous than touching and abusing a child,” Pizzo said.

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