A TEST OF PRECEDENT, POLICY & HUMANITY: AN ANALYSIS OF FLORIDA’S PROPOSED EXPANSIONS TO STATE CAPITAL PUNISHMENT LAW
By: Adam Kolb, Volume 107 Staff Member
The death penalty is primitive. The death penalty is ineffective and garners increasing disapproval. The death penalty—though constitutionally challenged and curtailed—is legal in the United States. Now, the extent of its legality is set to be tested yet again by proposed legislation arising in Florida.
In January 2023, Governor Ron DeSantis made calls for two separate expansions to Florida’s death penalty laws—amid the atmospherics of his potential campaign for presidency, low execution numbers during his gubernatorial term, and public outrage over the lack of capital punishment for the gunman responsible for the 2018 shooting at Marjory Stoneman High School.
First, DeSantis posed the idea of allowing the imposition of the death penalty upon a recommendation from a “supermajority” of jurors (at least eight of twelve), as opposed to the current unanimity requirement. Second, in promising “greater criminal accountability,” DeSantis asserted that he would seek to reauthorize the more “commensurate” punishment of death for child sexual abusers. Currently, Florida statute holds “sexual battery” of a child under the age of twelve by an adult to be a capital crime, but U.S. and Florida Supreme Court precedent has rendered the statute unconstitutional.
DeSantis’s calls have since been answered, and bills for both expansions have been introduced in the Florida legislature. H.B. 555 (S.B. 450) would recognize the juror “supermajority” recommendation as sufficient to impose the death penalty, while H.B. 1297 (S.B. 1342) would reinstitute capital punishment for adult sexual abusers of children under the age of twelve.
But as the bills proceed through the legislative process, grander questions require consideration. Are these changes in line with legal precedent? Are they sound policy? And on a deeper level, are these changes humane? The answers appear to align: no.
I. PRECEDENTIAL LIMITS
Since the reformation and reinstitution of the death penalty, the U.S. Supreme Court has continued to place limitations on its usage. Two decisions (and their Florida-specific progeny) potentially take exception to the proposed expansions.
A. “Supermajority”-Related Precedent
The Supreme Court in Hurst v. Florida held as unconstitutional a statute granting judges, upon a majority recommendation of capital punishment from the jury, the responsibility of determining whether aggravating factors “existed to justify imposing the death penalty.” Although the Court was primarily focused on the need for jurors to make the determination of aggravating factors based on the Sixth Amendment, on remand, the Florida Supreme Court interpreted the holding and the state constitution to require more. That court held that jurors must unanimously make three findings related to aggravating factors and be unanimous in recommending the death penalty. Changes to the relevant statute reflecting this holding followed soon after and remain today. Yet, this precedent does not completely condemn the proposed bill.
The door for a legislative bill like H.B. 555 has since reopened via the newly conservative Florida Supreme Court. In 2020, the court walked back its holdings in Hurst, removing the unanimous jury recommendation requirement by reinstating an eleven-to-one jury recommendation for the death penalty. It was a clear signal to the legislature that the court would not find a statute requiring less than a unanimous jury recommendation unconstitutional.
However, the U.S. Supreme Court may decide differently should the issue reach it, particularly as to whether this legislation rises to the level of cruel and unusual punishment prohibited by the Eight Amendment. The Supreme Court has determined that the Eighth Amendment’s protection stems from the basic idea that justice requires a criminal punishment to be “proportioned to [the] offense.” The existence of proportionality depends on present norms as informed by “the evolving standards of decency that mark the progress of a maturing society.” Thus, one relevant consideration for the Court would be what threshold other states require for jury death penalty recommendations. No state has reduced its jury recommendation threshold to eight of twelve jurors. Out of the twenty-seven states with the death penalty, only three do not require unanimity; Alabama requires ten jurors, while Missouri and Indiana allow the judge to decide when the jury is divided. Current national practice may therefore prove ruinous to the potential allowance of “supermajority” jury recommendations imposing the death penalty.
B. Child Sexual Abuse Precedent
The precedent regarding the proposed expansion to allow for the imposition of the death penalty in child sexual abuse cases, as alluded to above, is more straightforward. The U.S. and Florida Supreme Courts have both found this punishment unconstitutional. Proponents of H.B. 1297 are aware of this precedent, but desire to challenge it. The bill itself states that the relevant cases were “wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.” DeSantis has gone so far as to state, “[w]e do not believe the Supreme Court, in its current iteration, would uphold it, and so we are going to be exploring ways to facilitate some capital trials if you have the worst of the worst.” Nothing indicates the Supreme Court will, should, or has any desire to consider such a change. Therefore, while Florida statute may still state sexual battery of children is a capital crime, it will likely remain unenforced.
II. POLICY CONSIDERATIONS
Beyond legal hurdles to enacting Florida’s proposed legislation, extensive research also suggests that an expansion to the death penalty is not sound policy.
Legal studies illuminate a multitude of concerns, negative consequences, and skepticism stemming from the imposition of the death penalty. The death penalty is more expensive than other forms of punishment, has little impact on crime deterrence, continues to be imposed arbitrarily, further traumatizes victims’ families, and maintains the risk of executing innocent people. Further, in 2022, states showed a tendency of being unable to execute prisoners without incident. Relevant missteps included failures to establish an IV line when administering a lethal injection and to comply with critical aspects of state-specific execution protocol.” Additionally, at least one population survey exhibits the lowest death penalty acceptance rate in decades. From 2017 to 2022, the percentage of the population that supports the death penalty for a person convicted of murder has lingered around fifty-five percent, the lowest numbers since 1972.
Finally, execution data display a limited and dwindling usage of the death penalty. One 2013 study found that all state executions since the death penalty’s reinstitution in 1976 stem from cases in just fifteen percent of U.S. counties. This trend of limited usage has only continued. As of 2022, thirty-seven states—nearly three-quarters of the country—have abolished the death penalty or not executed anyone in over a decade. Moreover, 2022 was the twenty-first straight year the death row population has declined and the eighth consecutive year in which “fewer than 30 people were executed and fewer than 50 people were sentenced to death.”
Based on the extensive statistical data available, there is no policy reasoning in favor of the death penalty, let alone its expansion.
III. HUMAN RIGHTS AND THE HUMAN CONDITION
While American legal precedent and policy will ultimately determine the upshot of these expansion efforts, the humanity of the situation must also be considered. A progression of three international law instruments, among a body of others, lay the framework for this inquiry.
In 1948, the United Nations (U.N.) adopted “as a common standard of achievement for all peoples and all nations” the Universal Declaration of Human Rights. This monumental document dawned the recognition of human rights “to life” and “to live free from torture or cruel, inhuman or degrading treatment or punishment.” In 1966, the U.N. expanded these rights through the International Covenant on Civil and Political Rights (ICCPR), which recognized that “[n]o one shall be arbitrarily deprived of his life” and limited the death penalty to the “most serious crimes.” Finally, in 1989, the U.N. added a second optional protocol to the ICCPR. This supplement established “an international commitment to abolish the death penalty” and required ratifying nations to “take all necessary measures” to pursue this goal. Ninety nations have made this commitment; the United States is not one of them.
Yet, as 28,670 people globally live under a sentence of death, organizations and leaders worldwide continue to make calls for countries like the United States to pursue abolishing capital punishment. Most recently, the United Nations Human Rights Chief, Volker Türk, requested the seventy-nine countries that still actively use the death penalty to abolish the practice. He stated, “[o]pponents to a death penalty moratorium say that the rights of victims risk being overlooked; they assert that retribution is the best response. Are we not debasing our societies by depriving another human being of their lives?” Instead, Turk said, based on worldwide legal research, the focus needs to be on “controlling and preventing crime” by “building functioning, human rights-based criminal justice systems that ensure accountability for perpetrators and afford victims and survivors access to justice, redress, and dignity.”
Nonetheless, considering all the established precedent, policy, and pursuits of abolition, why is Florida choosing the alternate approach of trying to expand its death penalty laws? As Bryan Stevenson reflected in Just Mercy: A Story of Justice and Redemption, it may come down to a choice inherent in the human condition.
We are all broken by something. We have all hurt someone and have been hurt. We all share the condition of brokenness, even if our brokenness is not equivalent. . . . But our brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion. We have a choice. We can embrace our humanness, which means embracing our broken natures and the compassion that remains our best hope for healing. Or we can deny our brokenness, foreswear compassion, and, as a result, deny our own humanity.
Given the legal, policy, and human rights considerations, the most justified choice in this matter seems clear: a renunciation of the proposed capital punishment expansion. However, the fundamental existence of any choice depends on the availability of alternative options. So, Florida, what is your choice?
 See generally History of the Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty [https://perma.cc/DG3D-CAB5] (detailing the death penalty’s history through a five-sectioned summary).
 See infra Part II.
 See infra Part I.
 See State by State: States with and Without the Death Penalty – 2023, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state [https://perma.cc/9PRK-4DXG] (listing the twenty-seven states with the death penalty).
 See Romy Ellenbogen, Florida Wants Child Rapists Sentenced to Die. U.S. Supreme Court Has Ruled Otherwise (Mar. 1, 2023), https://www.miamiherald.com/news/politics-government/article272640540.html.
 See Austin Sarat, Why Ron DeSantis Wants to Make Florida America’s Leading Death Penalty State, Hill (Feb. 6, 2023), https://thehill.com/opinion/campaign/3846201-why-ron-desantis-wants-to-make-florida-americas-leading-death-penalty-state [https://perma.cc/DSK4-E3BK] (detailing speeches calling for change).
 See Jonathan Allen, Natasha Korecki & Ali Vitali, Ron DeSantis’ 2024 Campaign Emerges from the Shadows, NBC News (Feb. 27, 2023), https://www.nbcnews.com/politics/2024-election/ron-desantis-2024-campaign-emerges-shadows-rcna72044 [https://perma.cc/UZ4H-EMXN] (foreshadowing presidential campaign); Sarat, supra note 6 (hypothesizing that DeSantis wants to appear tougher on crime for potential presidential run).
 Gray Rohrer, Not So Deadly DeSantis – Law and Order Governor Has Signed Fewer Death Warrants Than Predecessors, Fla. Pol. (Sept. 14, 2022), https://floridapolitics.com/archives/555942-not-so-deadly-desantis-law-and-order-governor-has-signed-fewer-death-warrants-than-predecessors [https://perma.cc/P25P-56MR].
 See Jake Stofan, Parkland Father Pushes for Death Penalty Charges, Bill Advances in House to Remove Jury Requirement, Yahoo News (Mar. 15, 2023), https://news.yahoo.com/parkland-father-pushes-death-penalty-203854145.html [https://perma.cc/238T-9APK] (quoting a Parkland victim’s father supporting the lowered jury recommendation requirement).
 See A.G. Gancarski, Gov. DeSantis Calls for Juror ‘Supermajority’ to Suffice in Death Penalty Cases, Fla. Pol. (Jan. 23, 2023), https://floridapolitics.com/archives/583013-gov-desantis-calls-for-juror-supermajority-to-suffice-in-death-penalty-cases [https://perma.cc/EE5F-VT7A] (quoting DeSantis’ comments about jury unanimity requirement).
 Sarat, supra note 6.
 Tess Riski, DeSantis Proposes Death Penalty for Certain Sex Crimes, Increased Punishment for Fentanyl, Tampa Bay Times (Jan. 26, 2023), https://www.tampabay.com/news/florida-politics/2023/01/26/desantis-proposes-death-penalty-certain-sex-crimes-increased-punishment-fentanyl [https://perma.cc/83WQ-VTZZ].
 Fla. Stat. § 794.011(2)(a) (2022).
 See infra Part I.B.
 See Jim Saunders, Florida Bill Would No Longer Require Unanimous Jury Recommendations in Death Penalty Cases, Sarasota Herald-Trib. (Jan. 31, 2023), https://www.heraldtribune.com/story/news/state/2023/01/31/fl-considers-ending-requirement-for-unanimous-juries-to-execute-people/69858291007 [https://perma.cc/57QL-UTAP]; Ellenbogen, supra note 5. There is also a third bill introduced (H.B. 609/S.B. 520) that would allow judicial override of jury recommendations not to impose the death penalty. H.B. 609, 2023 Leg., Reg. Sess. (Fla. 2023), https://www.flsenate.gov/Session/Bill/2023/609 [https://perma.cc/ZG45-3FUZ].
 H.B. 555, 2023 Leg., Reg. Sess. (Fla. 2023), https://www.flsenate.gov/Session/Bill/2023/555 [https://perma.cc/5NPT-KQZX].
 H.B. 1297, 2023 Leg., Reg. Sess. (Fla. 2023), https://www.flsenate.gov/Session/Bill/2023/1297 [https://perma.cc/QSH5-K9EP].
 See, e.g., Stofan, supra note 9 (noting the progress of H.B. 555).
 In 1972, the Supreme Court ruled that a Georgia statute giving juries complete discretion over application of capital punishment allowed arbitrary and capricious sentencing and was therefore an unconstitutional form of cruel and unusual punishment. Constitutionality of the Death Penalty in America, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america [https://perma.cc/87WQ-Z75P]. Other states quickly reconstructed their own statutes to avoid similar rulings, and four years later, the Court found that the death penalty was not per se unconstitutional. Id. Additionally, the Court found state death penalty statutes that provided sentencing guidelines (including aggravating and mitigating factors) were constitutional. Id.; cf. Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (holding statutes mandating death sentences for certain crimes was unconstitutional).
 For example, the Court has forbidden the death penalty for juvenile crimes, Roper v. Simmons, 543 U.S. 551, 578 (2005); the rape of adult women, Coker v. Georgia, 433 U.S. 584, 600 (1977); and for mentally incompetent criminals, Atkins v. Virginia, 536 U.S. 304 (2002).
 577 U.S. 92, 94, 102–03 (2016).
 Id. at 97–98, 102–03; see also Stories: Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida [https://perma.cc/K3WA-75LA] (case summary).
 See Death Penalty Info. Ctr., supra note 22.
 Hurst. v. State, 202 So. 3d 40, 57–58 (Fla. 2016).
 See Fla. Stat. § 921.141(2) (2022).
 See Florida Supreme Court Retracts Jury Unanimity Requirement, Reinstates Non-Unanimous Death Sentence, Death Penalty Info. Ctr. (Jan. 24, 2020) [hereinafter Florida Retracts Jury Unanimity Requirement], https://deathpenaltyinfo.org/news/florida-supreme-court-retracts-jury-unanimity-requirement-reinstates-non-unanimous-death-sentence [https://perma.cc/Q4BJ-XELR] (detailing the “drastic” change in the court’s composition).
 State v. Poole, 297 So. 3d 487, 501–08 (Fla. 2020); Florida Retracts Jury Unanimity Requirement, supra note 26.
 Florida Retracts Jury Unanimity Requirement, supra note 26.
 Weems v. U.S., 217 U.S. 349 (1910).
 Trop v. Dulles, 356 U.S. 86, 101 (1958); Kennedy v. Louisiana, 554 U.S. 407, 419–21 (2008).
 Ellenbogen, supra note 5.
 Anthony Izaguirre & Terry Spencer, Florida Could End Unanimous Jury Requirement for Executions, ABC News (Feb. 2, 2023), https://abcnews.go.com/US/wireStory/florida-end-unanimous-jury-requirement-executions-96840774 [https://perma.cc/8N3J-XT8U].
 See Kennedy, 554 U.S. at 413 (holding the Eighth Amendment prohibits the death penalty for the “rape of a child under 12” where the crime “did not result, and was not intended to result, in death of the victim”); Buford v. State, 403 So. 2d 943, 950–51, 954 (Fla. 1981) (vacating death penalty for sexual assault of a child because it is a cruel and unusual punishment).
 Ellenbogen, supra note 5.
 Fla. Stat. § 794.011(2)(a) (2022).
 Policy Issues: Costs, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/costs [https://perma.cc/KQC8-HY4Z].
 See Policy Issues: Deterrence – Studies on Deterrence, Debunked, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/deterrence/discussion-of-recent-deterrence-studies [https://perma.cc/X35U-P7M2] (providing list of studies finding no deterrent value in the death penalty).
 See Policy Issues: Arbitrariness – Legally Irrelevant Factors Impact Death Sentencing, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/arbitrariness/evidence-of-arbitrariness [https://perma.cc/F46K-Y5NF] (suggesting factors such as race, gender, geography, attorney representation, and juror misperceptions impact whether a defendant gets the death penalty).
 Policy Issues: Victims’ Families, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/victims-families [https://perma.cc/TV5E-XGZE] (detailing the continued impact death penalty cases have on families).
 Policy Issues: Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence [https://perma.cc/GQY3-WVSQ] (finding 190 former death-row prisoners have been exonerated since 1973). Within that same timeframe, Florida leads the country with 30 exonerations of inmates on death row. Lizette Alvarez, Florida Moves to Revive a Reckless Approach to the Death Penalty, Wash. Post: Op. (Feb. 20, 2023), https://www.washingtonpost.com/opinions/2023/02/20/reckless-florida-death-penalty-legislation [https://perma.cc/M27G-K9F6].
 See The Death Penalty in 2022: Year End Report, Death Penalty Info. Ctr. (Dec. 16, 2022) [hereinafter Death Penalty in 2022], https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-2022-year-end-report [https://perma.cc/Y269-5TKS] (detailing that seven of the twenty executions in 2022 were “problematic”).
 Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx [https://perma.cc/H2E9-6GT5].
 Richard C. Dieter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Case at Enormous Costs to All, Death Penalty Info. Ctr. 4 (Oct. 2013), https://documents.deathpenaltyinfo.org/pdf/TwoPercentReport.f1564408816.pdf [https://perma.cc/T3JT-PDNV].
 Death Penalty in 2022, supra note 45.
 Policy Issues: Human Rights, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/human-rights [https://perma.cc/6MEN-6LDM] (listing international treaties).
 G.A. Res. 217 (III) A, pmbl. (Dec. 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights [https://perma.cc/Z95P-Y3AE].
 Id. art. 3, 5.
 G.A. Res. 2200A (XXI), art. 6 (Dec. 16, 1966), https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights [https://perma.cc/27FE-66ZE]. The United States ratified the agreement in 1992, but also reserved the right to impose the death penalty per “existing or future laws” and/or the Constitution. Death Penalty Info. Ctr., supra note 51.
 G.A. Res. 44/128, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Dec. 15, 1989), https://www.ohchr.org/en/instruments-mechanisms/instruments/second-optional-protocol-international-covenant-civil-and [https://perma.cc/V7DJ-ZNZ8].
 Id. pmbl., art. 1.
 Status of Ratification Interactive Dashboard, United Nations Hum. Rts.: Off. of the High Comm’r, https://indicators.ohchr.org [https://perma.cc/7QG5-LQWF].
 Death Penalty 2021: Facts and Figures, Amnesty Int’l (May 24, 2022), https://www.amnesty.org/en/latest/news/2022/05/death-penalty-2021-facts-and-figures [https://perma.cc/8F4R-3FEK].
 See, e.g., Human Rights and the Death Penalty, Am. Civ. Liberties Union, https://www.aclu.org/issues/human-rights/human-rights-and-death-penalty [https://perma.cc/C94B-N7ZA]; Death Penalty, Amnesty Int’l, https://www.amnesty.org/en/what-we-do/death-penalty [https://perma.cc/3V57-4UAS]; News Brief: Pope Francis Calls for Prayer to Abolish the Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/news-brief-pope-francis-calls-for-prayer-to-abolish-the-death-penalty [https://perma.cc/6XU5-PW2S]; More Than 150 Global Business Leaders Call for End of Death Penalty, Guardian (Oct. 7, 2021), https://www.theguardian.com/world/2021/oct/07/business-leaders-against-death-penalty [https://perma.cc/G847-3MB7].
 UN Human Rights Chief Calls on All Nations to Abolish Death Penalty, United Nations (Feb. 28, 2023), https://news.un.org/en/story/2023/02/1133977 [https://perma.cc/TEP5-VWL4].
 Bryan Stevenson, Just Mercy: A Story of Justice and Redemption 289 (2015).