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Florida Republicans just gave Alito, Thomas, and Roberts another chance to punish child rape with death penalty

 at the Supreme Court building in Washington, Friday, Oct. 7, 2022. Left to right: Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, and Associate Justice Samuel Alito. (AP Photo/J. Scott Applewhite)

Left to right: Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, and Associate Justice Samuel Alito.

Florida Republicans doubled down on their plans to increase executions in the Sunshine State by introducing legislation that would expand the reach of the death penalty beyond limitations put into place by the Supreme Court.

Just weeks after legislators backed Republican Gov. Ron DeSantis’ plans to eliminate the unanimous-jury requirement for death sentences, two Sunshine State legislators introduced bills that would allow child rapists to be put to death.

The bills directly conflict with rulings by the Florida Supreme Court and the United States Supreme Court, but legislators declared those rulings to be “wrongly decided,” arguing that any prohibition on the right to sentence child rapists to death is an infringement on states’ rights.

State Sen. Jonathan Martin (R-Fort Myers) and Rep. Jessica Baker (R-Jacksonville) filed  SB 1342 and HB 1297, respectively, just in time for the legislative session that began Tuesday. The bills make good on DeSantis’ sweeping criminal justice efforts, but contradict settled precedent by both the Florida Supreme Court and the United States Supreme Court.

The proposed laws create the crime of “capital sexual battery,” a felony that allows for the death penalty as a possible punishment after a court conducts a sentencing hearing like those used in capital murder cases. The laws also permit a person found guilty of capital sexual battery to be put to death after a non-unanimous jury vote of 8 to 4.

In the text of the bills, the legislature addresses a glaring problem: two controlling cases prohibit the death penalty as a punishment for child rape.

Specifically, the bills state, “The Legislature further finds that Buford v. State of Florida (1981) … was wrongly decided, and that Kennedy v. Louisiana … (2008), was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

In 1981, the Florida Supreme Court ruled in Buford v. State of Florida that while “Rape is without doubt deserving of serious punishment,” it “does not compare with murder.” At the time, the court reasoned, “Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.”

Notably, however, the defendant, Robert Lewis Buford, was sentenced to death. Buford was convicted of both murder and child rape. While the court found that the appropriate punishment for the rape of an 11-year-old child was life in prison with no eligibility for parole, it did so knowing that Buford was still facing a death sentence for a separate crime.

More recently, the Supreme Court of the United States ruled 5-4 in Kennedy v. Louisiana that the Eighth Amendment prohibits the death penalty for child rapists.

The 2008 decision was authored by Justice Anthony Kennedy and joined by the Court’s liberal flank at the time, which included Justices John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg — none of whom are still on the Court. However, three of the justices who dissented in Kennedy — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas — are still on the bench and are now joined by justices who have taken even more conservative positions than the late Justice Scalia did in many cases. Given the Court’s current makeup, the issue of capital child rape might well be reversed on appeal.

Most recently, Florida executed 59-year-old Donald David Dillbeck on Feb. 23. Dillbeck was convicted of stabbing and murdering Faye Vann during an attempted carjacking in a Tallahassee mall parking lot more than 30 years ago. At the time, Dillbeck was on the run, having escaped a prison work detail days earlier while serving a life sentence for the 1979 shooting death of Lee County Sheriff’s Deputy Dwight Lynn Hall. Dillbeck was just 15 years old when he killed the deputy.

Dillbeck asked the U.S. Supreme Court to overturn his death sentence on the grounds that it was the result of a non-unanimous jury decision, but the justices denied his appeal without comment. When Dillbeck was executed, his last words were that he “messed up,” but that DeSantis (R) has “done a lot worse.”

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos