Can Conservatives Expand the Death Penalty Using the “Trigger Law” Playbook?

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Having rolled back decades of precedent on abortion and reproductive health, conservatives are looking for ways to recycle the playbook that took down Roe v. Wade — and they’ve got their sights on the death penalty.

Republicans and their allies are eager to expand capital punishment, and U.S. Supreme Court cases that currently limit the crimes that can lead to executions are a prime target.

Conservatives’ eagerness to create more capital crimes is laid out in the sprawling Project 2025 manifesto, a road map for the first 180 days of “the next conservative administration.” Project 2025 urges the next administration — presumably, a second Trump White House — to throw the Justice Department’s weight into overturning the constitutional limits established by the Supreme Court.

In the meantime, Republican legislators are laying the groundwork to expand the death penalty to crimes beyond murder by passing “trigger laws” that would spring into effect once these Supreme Court Court guardrails are eliminated.

“They have a very high hill to climb.”

So far, Florida and Tennessee have enacted laws that allow prosecutors to seek the death penalty for child sex abuse. The laws’ proponents flaunted the contradiction with a Supreme Court decision from 2008, Kennedy v. Louisiana, which bars the death penalty for crimes other than murder based on the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Similar bills have been introduced by conservatives in Congress and a handful of other states, with an eye toward challenging the Supreme Court’s Kennedy ruling just as state laws challenged Roe to overturn abortion rights.

“To the extent there is an effort by folks in the state systems to challenge Kennedy,” said Robin Maher, executive director of the Death Penalty Information Center, “they have a very high hill to climb.”

Project 2025 shows Republicans are gearing up for the climb.

The Kennedy Precedent

The Kennedy case, decided in 2008, saw a divided Supreme Court strike down a state law that allowed a jury to impose the death penalty for rape of a child under 12 years old.

The majority’s decision built on decades of precedent interpreting the Eighth Amendment under “evolving standards of decency” — an approach that stands in firm opposition to conservative “originalist” jurisprudence.

The five-justice majority weighed heavily the risk of wrongfully executing offenders based on a child’s testimony and the documented negative effect on victims’ willingness to come forward if the death penalty is on the table for their abusers.

Under the Kennedy decision, the death penalty is unconstitutional in “instances where the victim’s life was not taken.” The court left open the possibility that execution might still be permissible for non-homicide crimes against the state, such as treason, espionage, or terrorism.

Justice Samuel Alito wrote for the conservative dissenters — including Chief Justice John Roberts, Justice Clarence Thomas, and late Justice Antonin Scalia — criticizing earlier death penalty rulings. Alito pointed to a handful of states that had enacted capital child-rape laws, which he suggested might be “the beginning of a new evolutionary line” for interpreting the Eighth Amendment.

At the time, the Kennedy ruling drew plenty of criticism, including from then-Sen. Barack Obama in the lead-up to the 2008 Democratic National Convention.

Public opinion, though, has shifted against capital punishment since Kennedy was decided, most starkly among Democrats and independents, according to Gallup polls. In 2008, a slight majority of Democrats and two-thirds of independents were in favor of the death penalty as a punishment for murder, compared to just under a third of Democrats and about half of independents in 2023.

By comparison, Republicans have consistently endorsed the death penalty, with support hovering around 80 percent since 2000.

On the campaign trail in 2020, Joe Biden promised to end the federal death penalty, but his Justice Department has sought death sentences for at least two defendants and urged appellate courts to uphold earlier sentences.

Project 2025’s “Priority”

Like Roe, Kennedy is a reviled decision among many conservatives, not least because of its non-originalist approach to the Eighth Amendment. And if Donald Trump wins the election in November, the conservative legal movement hopes he will prioritize overturning Kennedy.

The Project 2025 manifesto, spearheaded by the right-wing Heritage Foundation, is a 900-page document compiled by a “who’s who” of the conservative legal movement. It touches on everything from gutting the administrative state to restoring “the family as the centerpiece of American life.”

The manifesto’s chapter on the Justice Department was drafted by Gene Hamilton, the vice president and general counsel of America First Legal who served in the Trump DOJ. Hamilton calls capital punishment a “sensitive matter” while urging the “next conservative Administration” to “do everything possible” to execute all prisoners currently on death row.

Project 2025 also calls for pushing the limits of capital punishment. The Justice Department should “pursue the death penalty for applicable crimes,” Hamilton writes, “particularly heinous crimes involving violence and sexual abuse of children—until Congress says otherwise through legislation.”

In a footnote, the Kennedy decision is quietly raised as a target.

“This could require seeking the Supreme Court to overrule Kennedy v. Louisiana,” reads the footnote, “but the department should place a priority on doing so.”

Maher, of the Death Penalty Information Center, told The Intercept this section of Project 2025’s playbook puzzled her.

“Congress has spoken very clearly, as has the Supreme Court,” about the limits of the death penalty, she said.

“There’s no evidence the public is clamoring for more executions.”

“Roe was about a single issue, but this is about a standard of review that has been applied to decades of cases, anything that applies to the death penalty,” Maher said. “It would be the kind of abrupt change that would be unprecedented.”

“There’s no evidence the public is clamoring for more executions.”

Legislators Gunning for Kennedy

  Republican presidential candidate Florida Gov Ron DeSantis speaks at the Heritage Foundation on October 27, 2023 in Washington, DC. DeSantis spoke on a range of topics, including the U.S. alliance with Israel and global competition with China. (Photo by Drew Angerer/Getty Images)Florida Gov. Ron DeSantis speaks at the Heritage Foundation in Washington on Oct. 27, 2023. Photo: Drew Angerer/Getty Images

Conservative legislators are eager to tee up legal challenges to the Kennedy decision. Much of the pro-execution momentum so far has come from Florida Republicans.

In early May 2023, shortly before announcing his ill-fated bid for the Republican presidential nomination, Florida Gov. Ron DeSantis signed a trigger law that makes child rape a crime eligible for the death penalty “notwithstanding existing case law which holds such a sentence is unconstitutional.” The law says Kennedy was “wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

“This bill sets up a procedure to be able to challenge that precedent,” DeSantis told reporters at the time, “and to be able to say that in Florida we think that the worst of the worst crimes deserve the worst of the worst punishment.”

In December, local prosecutors announced the first attempt under the new Florida law to seek the death penalty for a man indicted for child sex abuse, which DeSantis lauded as the potential “first case to challenge SCOTUS.” Prosecutors later accepted a plea deal under which the defendant accepted a life sentence in prison. Last month, a Florida appellate judge noted the new legislation and urged Kennedy to be overturned.

Another Florida Republican has sponsored similar legislation in Congress. In April, Rep. Anna Paulina Luna, introduced a pair of bills that would turn various child sex abuse offenses into capital crimes, including possession of child pornography.

“I don’t know why we’re going to go down this path of passing something that’s blatantly unconstitutional. Because that’s what it is.”

“If someone commits horrific crimes against children, they deserve the death penalty or life in prison,” Luna said in a statement to The Intercept. “The Supreme Court did not make the right decision in Kennedy v. Louisiana.”

Earlier this year, Tennessee followed Florida’s lead. In May, Republican Gov. Bill Lee quietly signed a law to make aggravated child rape a capital offense, which goes into effect on July 1.

During debate in April in the Tennessee state Senate, Kennedy came up frequently. Sen. Ken Yager, one of the bill’s Republican sponsors, read from Alito’s dissent and affirmed that his aim was partly to overrule Kennedy.

“We have a bill that is unquestionably unconstitutional,” said Sen. Jeff Yarbro, a Democrat from Nashville. “I don’t know why we’re going to go down this path of passing something that’s blatantly unconstitutional. Because that’s what it is.”

Sen. Janice Bowling, a Republican, suggested her colleagues should think of overturning Kennedy “in terms of Roe v. Wade.

“Maybe it’s time for this to be changed,” Bowling said. “And maybe the atmosphere in the Supreme Court is different now. We’re not violating the Constitution. We’re simply challenging a ruling.”

Republicans in a handful of other states have recently floated similar legislation. One bill introduced in South Carolina in December, echoing Florida’s law, calls Kennedy “wrongly decided” and characterizes the decision as infringing “upon the power of the State to punish what it determines to be a monstrous and evil crime and punish those convicted as the State determines to be necessary and just.”

The South Carolina bill’s sponsor, state Rep. Jordan Pace, told The Intercept he used the Florida statute as a model. Asked whether he also hoped to challenge Kennedy, Pace said, “The aim is to provide swift and righteous justice for victims and their families.”

Bills that contradict Kennedy were also introduced last year in Arkansas, New Mexico, Missouri, Iowa, Idaho, and South Dakota.

For now, at least, Maher is skeptical that the trigger law playbook that tossed out Roe would also work to overrule Kennedy and other death penalty precedent. She said, “We’re all watching very closely to see what the court is willing to do.”

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