Last week, Republican Florida Gov. Ron DeSantis floated two unconstitutional proposals that would lead to the US executing more people.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.”
DeSantis is widely expected to seek the Republican Party’s presidential nomination in 2024, so this latter proposal may be an attempt to appeal to voters who believe in a QAnon conspiracy theory, which falsely claims that prominent liberals and Democrats are part of a vast ring of pedophiles.
While DeSantis’s two proposals are just ideas right now, he has been effective in moving his ideas through Florida’s GOP-controlled legislature. And he is a prominent voice in the Republican Party trying to convince the Court’s current 6-3 Republican supermajority to roll back limitations on the government’s power to impose cruel and unusual punishments.
Indeed, DeSantis isn’t really trying to hide this goal. Referring to the Kennedy decision that explicitly forbids his proposed expansion of the death penalty to a non-homicide crime, DeSantis said that “we do not believe the Supreme Court, in its current iteration, would uphold it.”
Should DeSantis’s plans to expand the death penalty succeed, the immediate consequences might only be felt in a handful of states. When Kennedy was decided in 2008, for example, only six states had laws on the books authorizing the death penalty for some sexual crimes that did not take a life. And only one state, Louisiana, actually had non-homicide offenders on its death row.
But the long-term implications of a decision overruling Kennedy could be profound. Kennedy held that nearly all people convicted of non-homicide crimes may not be sentenced to die. If the Supreme Court lifts this ban, that could permit a cascade of new state laws permitting executions for all sorts of offenses that do not involve murder.
And, while the non-unanimous jury idea would probably be too far for even this Court, DeSantis is not wrong to think that the Court’s current GOP-appointed majority may be willing to toss out whole swaths of cases limiting the government’s ability to impose excessive punishments on offenders. Fairly recently, in Bucklew v. Precythe (2019), a majority of the justices suggested that the legal framework the Court has used since the middle of the 20th century to decide which punishments are unconstitutional should be scrapped.
The Court, in other words, might be willing to give the government far more freedom to impose cruel and unusual punishments on offenders. And DeSantis is actively egging that possibility along.
Current law almost certainly requires a unanimous jury to impose a death sentence
In fairness, DeSantis’s proposal to allow a mere “supermajority” of a jury to impose death sentences may be too extreme even for this Supreme Court. Although the Court has never said explicitly that death sentences can only be imposed by a unanimous jury, it’s come pretty darn close. It’s done so, moreover, in two decisions that did not divide the Court along partisan lines.
Hurst was an 8-1 decision (only Justice Samuel Alito dissented). Ramos was authored by Justice Neil Gorsuch, a Trump appointee.
Before Hurst, Florida law empowered a judge to sentence capital defendants to die — the jury would recommend a sentence, but this recommendation neither had to be unanimous nor was it binding on the trial judge. Hurst held that this scheme violated a longstanding role providing that juries, and not judges, must “find each fact necessary to impose a sentence of death.”
Ramos, meanwhile, held that Louisiana and Oregon — the only states that permitted felony defendants to be convicted by non-unanimous juries — were in violation of the Sixth Amendment right to trial “by an impartial jury.” In so holding, Ramos spoke in sweeping terms about the need for unanimity from juries. “If the term ‘trial by an impartial jury’ carried any meaning at all,” the Court explained, “it surely included a requirement as long and widely accepted as unanimity.”
Read together, Hurst and Ramos should require a unanimous jury verdict to impose a death sentence. Hurst established that the decision to impose a death sentence must be made by a jury. And Ramos established that a unanimity requirement is implicit in the Constitution’s reference to a “trial by impartial jury.”
Florida’s laws have changed since Hurst, so DeSantis would need to pass a new law to permit non-unanimous juries to sentence individuals to die. And, of course, this new law would have to survive federal judicial scrutiny under Hurst and Ramos.
There is absolutely no doubt that the Constitution prohibits the death penalty for non-homicide crimes against individuals — for now
DeSantis’s proposal to expand the death penalty to some child sex offenders is a direct attack on Kennedy. The explicit holding of Kennedy is that “the Eighth Amendment prohibits the death penalty” for “the rape of a child where the crime did not result, and was not intended to result, in death of the victim.”
More broadly, Kennedy explained that death is only an appropriate sentence for a very short list of crimes. As a general rule, it held that “the death penalty should not be expanded to instances where the victim’s life was not taken” — although Kennedy also left open the possibility that death sentences could be imposed for “offenses against the State,” such as treason or terrorism.
In reaching this decision, Kennedy applied the same framework that the Court has used to determine which punishments are “cruel and unusual,” and thus violate the Eighth Amendment, for many decades. As Chief Justice Earl Warren wrote in Trop v. Dulles (1958), the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
This standard flows from the text of the Eighth Amendment itself, which says that “unusual” punishments are suspect. Thus, as a specific form of punishment becomes more and more uncommon, it stands on increasingly weak constitutional footing.
By the time the Kennedy case reached the Supreme Court, statutes permitting the death penalty for non-homicide offenses — even horrific offenses like child rape — were quite rare. Only six states permitted the death penalty for this offense when Kennedy was decided, and most of these statutes were defunct. No one in the United States has been executed for rape since 1964. And, at the time of the Kennedy decision, there were only two individuals on death row anywhere in the United States for a non-homicide offense. Both of these individuals were in Louisiana.
Accordingly, the Court concluded that “the evolving standards of decency that mark the progress of a maturing society” did not permit executions for non-homicide offenses. Absent a crime that threatens the nation itself, Kennedy held that the criminal justice system may only take a life to avenge the loss of another life.
In Bucklew, however, the Court handed down a very odd decision that seemed to suggest that Trop’s “evolving standards of decency” standard may be on its way out. Gorsuch’s majority opinion in Bucklew made no mention of Trop — a very unusual omission, because Trop is the seminal Eighth Amendment opinion that laid out the modern rule governing cases brought under that amendment — and it applied a novel rule that is inconsistent with Trop.
Bucklew suggests that, when determining whether a method of punishment is “cruel and unusual,” a court must ask whether “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’” Thus, while Trop asked whether a particular punishment is unusual today, Bucklew asked whether it was unusual in the 1780s.
It’s hard to know what to make of this disparity. Again, the majority opinion in Bucklew did not explicitly overrule the long line of cases applying the Trop rule; it did not mention Trop at all. Since Bucklew, moreover, the Court favorably cited Trop’s “evolving standards of decency” test in United States v. Briggs (2020) — though it discussed Trop only in passing and without explaining when lower courts should apply Trop and when they should apply Bucklew.
At the very least, however, Bucklew indicates that there is a strong contingent on the Court that wants to remake the Court’s approach to the Eighth Amendment, and to literally turn back the clock on which punishments are considered “cruel and unusual” by more than 230 years.
And, if Bucklew does eventually displace Trop, Kennedy is just one of many decisions that could fall.
Kennedy is one of many narrowly decided cases that imposed limits on the death penalty
The most ominous thing about DeSantis’s proposal to apply the death penalty to a non-homicide crime is that he knows full well that his state may not do this under Kennedy, but he’s decided to move forward anyway due to his belief that this Supreme Court will not respect its previous precedent.
He has good reason to suspect that.
For many years, Justice Anthony Kennedy (no relation to the party in Kennedy v. Louisiana) was the Court’s most important vote in death penalty cases. Kennedy typically voted with the Court’s conservative bloc in cases challenging the methods states may use to kill capital offenders. But he frequently voted with the Court’s liberal bloc in cases arguing that certain offenders may not constitutionally be executed.
Thus, Kennedy didn’t just write the Court’s opinion holding that non-homicide offenders are normally immune from the death penalty. He joined the Court’s decisions in Atkins v. Virginia (2002), which held that intellectually disabled offenders may not be executed; in Roper v. Simmons (2005), which held that juvenile offenders may not be sentenced to die; and in Panetti v. Quarterman (2007), which shielded death row inmates whose mental illness prevents them from understanding why they are being executed from being killed.
But Kennedy is no longer on the Court, and he was replaced by Justice Brett Kavanaugh, a hardline conservative who joined the Court’s opinion in Bucklew. Meanwhile, liberal Justice Ruth Bader Ginsburg died, and was replaced by conservative Justice Amy Coney Barrett (although, in fairness, Barrett does occasionally break with her fellow Republican appointees in death penalty cases).
There is good reason to believe, in other words, that the Court no longer has the votes to sustain not just the Kennedy decision, but a whole line of decisions limiting the government’s power to kill certain offenders.