Florida has drawn a legal line in the sand, and it knows exactly what it’s daring the U.S. Supreme Court to do about it.
Since 2023, the state has allowed prosecutors to seek the death penalty against adults convicted of sexual battery against children under 12 — even in cases where the child survives. It’s a law written not just to punish, but to provoke a constitutional showdown nearly two decades in the making.
Under Florida Statute 794.011, an adult who commits sexual battery against a child younger than 12 — or injures a child’s sexual organs while attempting to do so — commits a capital felony. Prosecutors who want to pursue execution must file formal notice within 45 days of arraignment.
But a conviction alone doesn’t seal a defendant’s fate. Florida law requires a separate sentencing hearing where a jury weighs aggravating and mitigating factors before recommending death or life without parole. The court then decides. Nothing about the process is automatic.
Governor Ron DeSantis signed the measure — House Bill 1297 — in May 2023, calling it protection for the state’s most vulnerable children and framing offenders as deserving the “worst of the worst” punishment. His administration was candid from the start: this law was designed to eventually land in front of the U.S. Supreme Court. It took effect for qualifying crimes committed on or after October 1, 2023.
In 2008, the Supreme Court ruled in Kennedy v. Louisiana that executing someone for child rape — when the victim survives — amounts to cruel and unusual punishment under the Eighth Amendment. That precedent has stood, unchallenged, for over 15 years.
Florida’s legislature didn’t tiptoe around that ruling. It wrote into the statute itself that lawmakers believe Kennedy was wrongly decided, and instructed courts to proceed with capital sentencing regardless. There’s a built-in fallback, though: if the Florida Supreme Court or the U.S. Supreme Court ultimately affirms that the death penalty remains unconstitutional here, anyone sentenced to death under the law would automatically be resentenced to life without parole.
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This isn’t a hypothetical legal exercise playing out only in law journals. In June 2026, prosecutors in Florida’s 18th Judicial Circuit filed notice seeking the death penalty against a 35-year-old Sanford man indicted on multiple child-sex-crime charges — the first time that circuit has invoked the 2023 law, though prosecutors elsewhere in Florida have already tested it in prior cases.
Whether that case — or any like it — ultimately results in an execution depends on the same layered process: guilt must be proven, aggravating factors weighed, and any death sentence will almost certainly face appellate and constitutional review.
Florida’s statute lists specific aggravating factors that can support a death sentence, including whether the victim was under 12, whether the defendant has prior violent felony convictions, whether the crime involved kidnapping or additional sexual battery, and whether the offense was especially heinous or cruel. Defendants, in turn, may present mitigating evidence — meaning a death sentence is never guaranteed simply because a conviction occurs.
Florida hasn’t stopped at this one law. Its 2026 statutes now also allow prosecutors to pursue the death penalty in certain human-trafficking cases involving sexual exploitation of children under 12 — another expansion of capital punishment aimed squarely at crimes against the state’s youngest victims.
Taken together, these laws form Florida’s most direct challenge yet to nearly two decades of Supreme Court precedent — a bet, essentially, that a more conservative bench might be willing to revisit Kennedy v. Louisiana and redraw the boundaries of what the Eighth Amendment permits.