Lawmakers pursue death penalty in rapes of children under age 12

TALLAHASSEE — In a move that likely would spur a constitutional fight, Florida lawmakers appear ready to pass a proposal that would allow the death penalty for people who commit sexual batteries on children under age 12.

The House is scheduled Thursday to take up its version of the bill (HB 1297), while the Senate version (SB 1342) was approved Tuesday by the Rules Committee, positioning it to go to the full Senate.

The proposal comes after decades of U.S. Supreme Court and Florida Supreme Court rulings that have said it is unconstitutional to execute defendants in rape cases. A Senate staff analysis said nobody has been executed for a non-murder crime in the United States since 1964.

In a rebuke of the court precedents, the House and Senate bills say that a 1981 Florida Supreme Court case and a 2008 U.S. Supreme Court case were “wrongly decided,” with the Senate version saying “such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

Senate bill sponsor Jonathan Martin, a Fort Myers Republican who is a former prosecutor, said the bill would create needed “constitutional boundaries by providing a sentencing procedure for those heinous crimes” that would be similar to death-penalty laws for murder.

“If an individual rapes an 11-year-old, a 10-year-old, a 2-year-old or a 5-year-old, they should be subject to the death penalty,” Martin said Tuesday after the Rules Committee approved his bill.

Aaron Wayt, who represented the Florida Association of Criminal Defense Lawyers at Tuesday’s meeting, said people want “vengeance” when children are victims of sexual batteries, but he pointed to U.S. Supreme Court precedent on the issue.

“This bill invites a longer, costlier (legal) process for the victim and their family that they will endure,” Wayt said. “While this crime, anyone convicted of it is vile, heinous, the Constitution itself, the case law, the Supreme Court demands a maximum of life in prison. And so while it’s not the vengeance we all want, it’s the justice that the Constitution demands.”

But Senate Minority Leader Lauren Book, a Plantation Democrat who was sexually abused as a child, said “there is no statute of limitations” on the suffering of victims.

“This is a life sentence that is handed down to young children,” Book said. “We’re talking about the youngest of the young in this bill. I was one of those kids. I still to this day at … 38 years old deal with the very, very real lasting effects of this crime. It never goes away. Sometimes you close your eyes and you see it. I don’t get a chance to make it stop.”

Under the bills, defendants could receive death sentences based on the recommendations of at least eight of 12 jurors. Judges would have 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 are poised to change that requirement to allow death sentences after recommendations from eight of 12 jurors. The Senate has already passed such a change, and the House will take it up Thursday.

At least in part, the Republican-controlled Legislature has been emboldened by conservative shifts in recent years on the Florida Supreme Court and the U.S. Supreme Court.

In 2020, for example, the Florida Supreme Court ruled that unanimous jury recommendations were not needed to sentence defendants to death in murder cases. That reversed a 2016 ruling that required unanimity.

— News Service Assignment Manager Tom Urban contributed to this report.