“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.””