Ron DeSantis Again Demonstrates the Right Instincts

Where a candidate stands on the death penalty is a good barometer of his attitudes on criminality, accountability and standards

My friendly adversary Prof. Doug Berman of the Moritz College of Law at Ohio State notes what I regard as an important development in both law and Presidential politics (emphasis added):

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "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."

In Florida, a multi-month effort to push back on this doctrine culminated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

[T]he new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution….That provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy…. 

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanaugh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

I think the conservative majority would be plenty eager to take it up, not because anyone thinks that executions are happy-making, but because the mode of constitutional analysis used by the Kennedy majority (written coincidentally by Justice Kennedy) is grossly at odds with the thinking of the Court’s present majority.

Particularly noteworthy was the Kennedy Court’s reliance on its “independent judgment” about what “cruel and unusual” means. As the existing conservative majority understands, the Constitution nowhere provides a portfolio for unelected judges to displace simply by fiat the legislature’s assessment of cruelty or excess. More broadly, assuming arguendo the dubious (if now ingrained) proposition that the contours of criminal law are to be shaped by — in Earl Warren’s grandiose power-grab of a phrase, “evolving standards of decency that mark the progress of a maturing society” — it would seem obvious that the body best suited to detect and articulate those standards is the body closest to the people who supposedly embrace them (i.e., a body of elected representatives) rather than nine upper-crusty lawyers from Harvard, Yale, and Stanford, et. al, protected 24/7 by a security detail.

DeSantis’ support for renewing at least the possibility for a jury to consider capital punishment for child rape also shows support for — ready now? — democracy. Yes, that same democracy the Left ceaselessly wails that conservatives want to cash in.

Like abortion, the death penalty and the circumstances in which it may be just to use it involve the most important and contentious moral questions — the kind of questions that the whole concept of democracy aims to leave to the people rather than the elites. Just as Dobbs returned the abortion question to democratic processes to address, a decision upholding the new Florida statute and overruling Kennedy would return to the people the question whether the death penalty can ever be appropriate for child rape. And as with Dobbs, different states will reach different conclusions.

So be it. That is what federalism, a critical foundation of the Constitution, is all about. A federalized, one-size-fits-all rule, like those adopted from on high in Roe and Kennedy,is actually the opposite of democracy — not that you’ll ever hear those loudly pretending to be concerned about democracy’s survival admit it.

Finally, DeSantis’ support for the new Florida law is good retail politics. As the USA Today story notes:

It passed out of the Legislature with support from both parties in both chambers. Only three Democrats and two Republicans voted against the legislation in the Senate….Senate Democratic Leader Lauren Book, a victim of child sexual abuse who founded the advocacy organization Lauren’s Kids, said allowing capital punishment to be applied to sex crimes against children could be warranted. 

“There’s no statute of limitations that a victim suffers. This is a life sentence that is handed down to young children,” Book said. 

If the Democrats next year want to line up on the side of child rapists, and cast DeSantis as nothing more than a punishment-driven wahoo for being on the other side, all I can say is thank you God.