Can Conservatives Expand the Death Penalty Using the “Trigger Law” Playbook?
Introduction:
Conservatives are seeking to expand capital punishment by targeting U.S. Supreme Court cases that limit the crimes that can lead to executions. Their efforts are outlined in the Project 2025 manifesto, which urges the next conservative administration to overturn the constitutional limits established by the Supreme Court. Republican legislators are also passing “trigger laws” that would expand the death penalty to crimes beyond murder once these Supreme Court guardrails are eliminated.
The Kennedy Precedent:
The Kennedy case, decided in 2008, struck down a state law that allowed the death penalty for child rape. The majority’s decision was based on the risk of wrongfully executing offenders and the negative impact on victims’ willingness to come forward if the death penalty was an option. Under Kennedy, the death penalty is unconstitutional in cases where the victim’s life was not taken. However, execution may still be permissible for non-homicide crimes against the state. The dissenting conservative justices criticized earlier death penalty rulings and suggested that Kennedy could be overturned.
Changing Public Opinion:
Public opinion on capital punishment has shifted since Kennedy was decided. Gallup polls show a decline in support for the death penalty among Democrats and independents, while Republicans have consistently endorsed it. In 2020, Joe Biden promised to end the federal death penalty, but his Justice Department has sought death sentences for some defendants. This changing landscape sets the stage for conservatives to challenge Kennedy and expand the death penalty.
Project 2025’s “Priority”:
Project 2025, spearheaded by the Heritage Foundation, calls for pushing the limits of capital punishment. The manifesto’s chapter on the Justice Department urges the next conservative administration to execute all prisoners currently on death row and pursue the death penalty for applicable crimes involving violence and sexual abuse of children. The manifesto also mentions the need to seek Supreme Court overruling of Kennedy v. Louisiana, although legal experts question the feasibility of such a move.
Legislators Gunning for Kennedy:
Conservative legislators, particularly in Florida, are eager to challenge the Kennedy decision. Florida Governor Ron DeSantis signed a trigger law making child rape eligible for the death penalty, despite the existing case law that deems it unconstitutional. Prosecutors in Florida have attempted to seek the death penalty under this law, and an appellate judge has urged Kennedy to be overturned. Similar legislation has been introduced in Congress and other states, with proponents arguing that Kennedy was wrongly decided.
Challenges Ahead:
While conservatives are determined to challenge Kennedy and expand the death penalty, legal experts remain skeptical. Congress and the Supreme Court have been clear about the limits of the death penalty, and there is no evidence that the public is demanding more executions. Overturning Kennedy would require an abrupt change that would be unprecedented. The outcome will depend on how willing the court is to make such a dramatic shift in its stance on the death penalty.
