By Brinda Kalita
TALLAHASSEE, FL – In an opinion article published on Slate, two progressive-leaning lawyers wrote about a dangerous bill that Florida lawmakers are working on that would broaden the death penalty on non-homicide crimes.
Discussing the implications this bill will have for Florida’s current criminal justice policies were Maria Deliberato, a capital defense lawyer in Tampa and the executive director of Floridians for the alternatives to the death penalty, and Melanie Kalmanson, a steering member for the American Bar Associations Death Penalty Representation Project.
In the Slate article, Deliberato and Kalmanson discuss how with the support of Gov. Ron DeSantis, Florida lawmakers are looking to broaden the death penalty on non-homicide crimes, such as crimes of sexual battery on children.
They also discuss where the bill is currently at in the hearing process. They wrote that, currently, this bill is in Florida’s Senate Rules Committee, with this being the last stop before it makes it to the Senate floor.
However, Deliberato and Kalmanson stress that the goals of this bill greatly contradict the decision made by the Supreme Court in Kennedy v. Louisiana, where it was ruled that punishing a defendant with death when the crime does not intentionally cause the victim’s death violates the Eighth Amendment of the Constitution.
More specifically, the authors of the Slate piece said State Senator John Martin (the Senate bill’s sponsor) argued “Justice Samuel Alito’s dissenting opinion in Kennedy—joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas—opened the door to this legislation.”
Deliberato and Kalmanson said in light of Alito’s dissent and the current court’s “ideological framework,” Sen. Martin believes that the “new” court would “be in favor” of this legislation,”
Similar comments were made by Senator Jessica Baker (the House bill’s sponsor) when she stated that the bill “welcome[s]” a constitutional challenge and is “hopeful” the court would “recede” from its “improperly decided” opinion in Kennedy.
Moreover, Deliberato and Kalmanson said Baker adds that she doesn’t think that the bill is unconstitutional. More specifically, she says that “15 years of wrongly decided case law is not persuasive” and that “Kennedy is ripe for reconsideration because the majority’s decision was not “based on any law” and did not point to any statute or constitutional provision for its basis but was, instead, based on the majority’s “independent judgment.” when she was previously asked about her response to the controversies of this bill.
However, according to Deliberato and Kalmanson, Baker’s (and by technically Martin’s as well) are “far from accurate.”
More specifically, they write, “Of course, the legislators’ blatant disregard for precedent undermines the bedrock of our court system—the theory of stare decisis. Worse, legislation attacking precedent undermines our system of government, which is grounded on a separation of powers.”
However, Deliberato and Kalmanson believe Florida’s lawmakers are emboldened by many current events, noting, “Of course, there’s a good reason state legislators now think they can pass laws ignoring long-standing Supreme Court precedent and rely on the court’s recently changed supermajority to demolish long-standing precedent.
“Indeed, that is exactly what happened in 2021 with the Texas abortion bounty bill, S.B. 8, and again last year when the court overturned its long-standing precedent establishing the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
“With Dobbs in the background, Florida’s legislators are confident this court would be similarly willing to undo Kennedy and expand the constitutional boundaries of capital punishment to make way for this legislation.”
Deliberato and Kalmanson also believe that if this law is passed, it leads to many implications about the future criminal justice system in regard to the death penalty.
They specifically write, “Even if the legislators’ speculations about the court’s views prove true, the bills still pose constitutional concern. With this legislation, Florida will be an extreme outlier in capital punishment. Perhaps more concerning is the idea that child sexual battery is just the beginning to a ‘slippery slope’ of expanding the death penalty to non-homicide crimes…”
Moreover, while Deliberato and Kalmanson stress that they do not deny the heinous and atrocious nature of child sexual battery offenses, they firmly believe, “Imposing an unconstitutional penalty that strains the state’s resources is just not the answer.”
“As we have explained, just one death sentence costs the state millions of dollars more than a sentence of life in prison without parole, and Union Correctional Institution—which houses Florida’s death row—is severely understaffed,” Deliberato and Kalmanson wrote.
Another consequence Deliberato and Kalmanson discuss are the consequences this could have on child sexual assault cases, noting “the abuser in child sexual assault cases is most often a family member or close family friend. As a result, the living child victim—in addition to the trauma from the abuse—would bear the weight of the perpetrator being subject to a death sentence and suffer through the decades of uncertainty and appeals that are unique to capital punishment.”
Instead, Deliberato and Kalmanson stress “more resources to be put into place to protect children from abuse in the first place and to ensure that survivors can have access to mental health treatment in the first place.” This, they believe, is the only way to end the cycle of violence.