The film The Godfather opened with Don Corleone’s daughter getting married. It was customary that no Sicilian could decline a request on his daughter’s wedding day. A funeral director, whose own daughter had been raped, made the first request. The individuals responsible were found guilty, but the judge suspended their sentence, releasing the rapists. The funeral director informed his wife that “to get justice,” they needed to go to Don Corleone. The funeral director requested for Don Corleone to arrange the murder of the men who raped his daughter, but Don Corleone replied, “That’s not justice. Your daughter is still alive.”
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In 2008, the United States Supreme Court declared in Kennedy v. Louisiana that imposing the death penalty for non-homicide crimes, notably child rape, violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The court had to reconsider Coker v. Georgia (1977), which decided that the death penalty for rape of an adult was a grossly disproportionate punishment, but it did not apply when the victim was a child.
The rape in the Kennedy case was unusually brutal, eliciting widespread sympathy for the victim and deadly hatred toward the perpetrator. Patrick O’Neal Kennedy was convicted in 1998 of raping and sodomizing his 8-year-old stepdaughter. According to court reports, “the rape tore her vagina on the interior, causing it to separate partially from her cervix and allow her rectum to protrude into her vagina. These injuries needed to be repaired with invasive emergency surgery.”
The Supreme Court ruled that the death penalty should exclusively be used for crimes where the victim was killed or death was intended.
The rival presidential contenders of 2008, who had nothing in common, agreed that the Supreme Court was incorrect. Republican John McCain criticized the ruling as “an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime.” Democrat Barack Obama said, “I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state decides that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution.”
The Supreme Court was deemed conservative at the time due to two George W. Bush appointments to the bench. The majority opinion said that growing norms of decency must include and reflect respect for the dignity of the person, i.e., the convicted. In other words, disproportional punishment is illegal regardless of the victim’s age or society’s righteous rage toward the criminal.
Righteous rage combined with disproportionate punishment makes the death penalty an act of social vengeance, and as Don Corleone put it, “That’s not justice.”
In 2023, Florida passed a landmark bill that expanded the state’s death penalty to include defendants who rape children under the age of 12. This statute implemented what the Supreme Court ruled unconstitutional in 2008. After Florida Governor Ron DeSantis signed the bill, he stated, “In the worst of the worst cases, the only appropriate punishment is the ultimate punishment,” and he was prepared to take that bill all the way to the Supreme Court to challenge the precedent set in Kennedy v. Louisiana, which prohibited child rapists from being executed.
Recently, Florida’s Attorney General announced they will seek the death penalty for Nathan Holmberg. The Attorney General stated, The evidence shows that this individual engaged in sexual abuse with a 3-year-old—not only did he engage in these horrific physical acts, but he also recorded them.
Holmberg is the first person to face the death penalty under Florida’s new death penalty law.
A coalition of state legislators defended Florida extending the death penalty to child rapists, arguing that it reflects the state’s moral responsibility to impose the harshest consequences on those who prey on children—certain acts are so destructive that capital punishment is justified even if the victim survives. DeSantis believes that each state should be able to select the proper punishment for crimes committed inside its borders, especially those involving children. The governor described child rape as a “uniquely heinous” crime in which the harm caused is irreversible and equal to “spiritual homicide.”
While it is natural to be moved by the sentiments of Florida’s officials, they are appealing to our rage and contempt towards anyone who would deprive a child of their innocence; however, such feelings are not justifications for the death penalty. Upon closer examination, DeSantis supports the notion that each state has the right to establish its own system of reciprocal justice.
According to the Supreme Court, “an eye for an eye” does not entail cruel and unusual punishment. The death penalty is a possible punishment for someone who murders another individual. That is reciprocal justice because it is proportional.
DeSantis emphasized that child rape is “uniquely heinous,” and he believes that the state should be able to punish the perpetrator in a uniquely heinous manner. For DeSantis, reciprocal justice means more than just “an eye for an eye” in the case of a victim’s death; it can also mean “cruel & unusual for cruel & unusual” for the spiritual death of a living victim.
Most people would agree that a person like Holmberg should be executed for his non-homicide crimes, but what if an adult babysitter was arrested for coercing a brother and sister, both under the age of twelve, into performing oral sex on each other for the babysitter’s pleasure? This could be deemed a double “spiritual homicide,” but most people will agree that executing the babysitter is grossly disproportional and that life in prison is sufficient. To prevent the babysitter from facing the death penalty, a precedent must be established that also prohibits the execution of people like Holmberg.
The Supreme Court already established that precedent in 2008.
Florida’s challenge to that precedent is rooted in a strong desire to severely punish those that harm children, but as Don Corleone recognized, it’s not justice when the child is still alive.