Undergraduate Law Review at Florida State University

Retributive Justice as a Justification for the Death Penalty: An Analysis of Florida Senate Bill 1804

—

by

Undergraduate Law Review at FSU
in

Writer: Bennett Calvo

Article Editor: Evelyn Shvartsman

Associate Editors: Madeline Swaine & Kelsie Fernandez 

I. Introduction

    On October 1, 2025, Florida Senate Bill 1804 took effect,1 expanding the scope of the death penalty. The bill reclassified sex trafficking of minors under the age of twelve, committed by adults over eighteen years of age, as a capital crime, which could be met with capital punishment.2 Florida Senate Bill 1804 and other recently passed pieces of legislation with similar objectives3 all raise the same question: is the widening of the death penalty at the state level a constitutionally acceptable practice? As an examination of Florida Senate Bill 1804 will show, the practice of expanding capital punishment to non-homicide offenses purports to be constitutional as a facet of retributive justice. This is done by equating the speculative risk that sex trafficking victims could die to the certainty of the death penalty in an appeal to the U.S. Supreme Court precedents, which recognize proportionality as the threshold for constitutionality.

    II. Capital Punishment at the Federal Level

      In 1972, the landmark United States Supreme Court case Furman v. Georgia ruled that the death penalty violated the Eighth Amendment, which prohibits cruel and unusual punishment,4 and was thus unconstitutional.5 Four years later, in 1976, five simultaneously decided cases overturned the key holding of Furman and reinstated the death penalty at the federal level.6 This tumultuous legal history of the death penalty in the U.S. has sparked extensive debate over the constitutionality of the policy. 

      Those who assert that the death penalty is constitutional often point to two justifications present in all levels of court: deterrence of capital crimes and retribution.7 As applied to the death penalty, deterrence is the idea that a sentence of execution discourages prospective offenders from acting in such a way that might cause their death.8 Retribution, as it is used to justify the death penalty, is the concept that a criminal’s punishment for a crime of any given severity should be met with a punishment of equal severity. In other words, retributive justice simply means “criminals are put to death because they deserve it.”9 For as common as these two justifications are in cases which find the death penalty to be constitutional, mentions of the Eighth Amendment’s prohibition of cruel and unusual punishment10 are just as commonly found in cases which find that the death penalty is unconstitutional in a given circumstance.11 The U.S., as a democracy that constitutionally grants a number of liberties and freedoms to its people, can be viewed as morally at odds with the death penalty on a conceptual level, wherein the taking of a life can never share ground with the democratically aligned dignity of man.12 These grounds of deterrence, retribution, and morality, have defined debates on the death penalty at both the federal and state levels.

      III. Florida Senate Bill 1804 

        As the state of Florida has steadily been expanding the applicability of the death penalty in its justice system, the Florida Senate Bill 1804 can be seen as a continuation of this doctrine.13 The aforementioned bill modified the language of Florida Statute 921.1427 to allow for a jury to impose the death penalty upon a defendant over eighteen years of age found guilty of sexual trafficking of a victim under twelve years of age.14 With regard to the intent of this amendment, the Florida legislature wrote “[a person] that has subjected a child younger than 12 years of age … to human trafficking for sexual exploitation … imposes a great risk of death and danger to vulnerable members of this state … persons who commit such acts against such vulnerable persons may be determined by the trier of fact to have a culpable mental state of reckless indifference or disregard for human life.”15 While this statement of intent provides a retributive justification for the death penalty—as it equates the severity of trafficking a child younger than twelve with the severity of capital punishment—sexual trafficking does not necessarily result in death, or at least does not equate to death as first-degree murder would. In the case of this particular argument, the mechanism of retribution is the concept of proportionality—the idea that the severity of punishment should be proportionate to the severity of the crime committed—which can be defined, via the Eighth Amendment to the United States Constitution, as the use of punishments that are not cruel or unusual in the context of a given crime.16 This concept of proportionality is commonly discussed in court rulings on cases involving the death penalty. In many previous U.S. Supreme Court cases involving the death penalty, lower court decisions that sentenced a defendant to death were overturned for a lack of proportionality.17

        IV. Proportionality as a Precedent

          Two Supreme Court cases that overturned death penalty rulings through proportional arguments, which apply in particular to the language of Florida Senate Bill 1804 and Florida Statute 921.1427, are Coker v. Georgia and Kennedy v. Louisiana.

          In Coker, the defendant escaped from a correctional facility in Southeast Georgia where he was serving sentences for murder, rape, kidnapping, and aggravated assault. After escaping, Coker broke into a couple’s home and, among a series of other crimes, raped an adult woman.18 Due to aggravating circumstances, including his escape from prison and the other violent crimes he committed upon escaping, Coker was sentenced to death by a jury.19 After a string of appeals, Coker’s case received certiorari and was reviewed by the U.S. Supreme Court. The Court overturned Coker’s death sentence, stating, “Although rape deserves serious punishment, the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such and as opposed to the murderer, does not take human life.”20 In this decision, the Court found the death penalty to be “grossly disproportionate and excessive punishment for the crime of raping an adult woman,”21 and struck down the then-active Georgia Statute which allowed for the death penalty to be used in cases of rape.22 

          The Court’s argument against the use of the death penalty for the crime of rape is pertinent to Florida Senate Bill 1804, as it directly comments on the disproportionality between sexual crimes that do not result in death and the death penalty. However, there is a key distinction between Coker and Florida Senate Bill 1804 such that Coker cannot be directly applied to determining the constitutionality of Florida Statute 921.1427: the victim of Coker’s sexual crime of rape was an adult, and the victims identified in Florida Statute 921.1427 are not just minors, but minors under the age of twelve.23 This distinction—adult versus minor victim—limits the application of Coker in determining the constitutionality of Florida Senate Bill 1804.

          Similar to Coker, the U.S. Supreme Court case of Kennedy v. Louisiana is one in which the Court overturned a death penalty ruling for a sexual crime. Unlike in Coker, and of significance for this examination of Florida Senate Bill 1804, the victim in Kennedy was a minor.

          In Kennedy, the defendant was sentenced to death for the aggravated rape of his then 8-year-old stepdaughter. Kennedy, appealing to the ruling in Coker, saw his case move through the appellate courts. His death sentence was affirmed by the Louisiana Supreme Court, which reasoned that “children are a class in need of special protection” and “held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death.”24 The U.S. Supreme Court disagreed, citing the Eighth Amendment25 and found this punishment disproportionate holding that “the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death” was unconstitutional.26 

          Taken in tandem with Coker, the Court’s ruling in Kennedy provides a “cruel and unusual punishment” critique of the death penalty when used for sexual crimes, even in cases where the victim is a minor. Given this analysis, the constitutionality of Florida Senate Bill 1804 is dependent on the phrase “imposes a great risk of death and danger.”27 This characterization of sexual exploitation of a minor under twelve years of age as one which exposes the most vulnerable members of society to potentially deadly conditions circumvents the holding of Kennedy by equating a potentially deadly condition to the certainty of the death penalty in an appeal to proportionality. While it is not an unfounded claim to state that sexual trafficking can lead to death, as it is a crime which results in the annual deaths of 30,000 victims globally,28 to state that the potential for death is equivalent to the certainty of death might be an overstated assumption.

          V. Conclusion

            Florida Senate Bill 1804’s reliance on the assumption that the potential death of a victim is proportional to the certain killing of a defendant seems unconstitutional. However, it is difficult to determine the constitutionality of recently passed bills, such as Florida Senate Bill 1804. Similar to the passage of laws at the federal level,29 passage of laws at the state level does not require approval from a legal apparatus such as the state’s supreme court.30 This is of utmost importance in the case of Florida Senate Bill 1804, Alabama House Bill 41,31 and other related pieces of state-made death penalty legislation which have recently been enacted. In other words, scholars, justices, and citizens alike cannot determine whether such laws are constitutional until a case related to them is appealed to the U.S. Supreme Court. Considering that Florida Senate Bill 1804 and Alabama House Bill 41 were both proposed within the last year of writing, the appellate system may take a while to deliver a case related to one of them to the U.S. Supreme Court. Until that time, the currently accepted precedent of proportionality remains the controlling constitutional framework, allowing certain states to continue expanding the application of the death penalty through new or modified statutes—which equate the potential for a victim’s death to the certainty of a defendant’s death—whose constitutionality has yet to be reviewed by the Supreme Court.

            1. Fla. S. 1804, 2025 Leg., Reg. Sess. (Fla. 2025). ↩︎
            2. Fla. Stat. § 921.1427 (2025). It should be noted that capital punishment and the death penalty will be used interchangeably in this article to refer to the action of legally taking the life of a convicted criminal in accordance with a verdict delivered by a court or a jury. ↩︎
            3. Ala. H.R. 41, 2026 Leg., Reg. Sess. (Ala. 2026). Alabama House Bill 41 expanded the death penalty in Alabama to cases of rape, sodomy, or sexual torture of a minor under twelve years of age. This bill was approved by the Senate Judiciary Committee on February 3, 2026, and is currently moving through the legislative process. ↩︎
            4. U.S. Const. amend. VIII.  ↩︎
            5. Furman v. Georgia, 408 U.S. 238 (1972). ↩︎
            6. The five cases were Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). ↩︎
            7. Gregg, 428 U.S. at 153. ↩︎
            8. Bruce Jacobs, Deterrence and Deterrability, 48 Criminology 417 (2010). ↩︎
            9. Furman, 408 U.S. at 238. ↩︎
            10. U.S. Const. amend. VIII. ↩︎
            11. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev. 677 (2005). ↩︎
            12. Furman, 408 U.S. at 238–39, quoting Thorsten Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959). Furman specifically quotes the following from Sellin’s work, “the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century…”. ↩︎
            13. Fla. H.R. 555, 2023 Leg., Reg. Sess. (Fla. 2023). This bill, proposed and passed through the Florida House of Representatives, altered the text of Florida Statute 921.141 to allow for death sentences to be applied in cases where eight jurors recommend capital punishment as a course of action. This is a significant change from the previous language which required unanimous consent from a jury to sentence a defendant to death. ↩︎
            14. Fla. Stat. § 921.1427 (2025). ↩︎
            15. Id. ↩︎
            16. U.S. Const. amend. VIII. ↩︎
            17. See Kennedy v. Louisiana, 554 U.S. 407 (2008); See Enmund v. Florida, 458 U.S. 782 (1982); See Coker v. Georgia, 433 U.S. 584 (1977). ↩︎
            18. Coker, 433 U.S. at 584. After escaping, Coker broke into the Carver residence, restrained Mr. Carver, stole money and the keys to the couple’s car, raped Mrs. Carver, and stole the couple’s car, kidnapping Mrs. Carver in the process. Mr. Carver broke free of his restraints and notified the police who apprehended Coker and freed Mrs. Carver. ↩︎
            19. Id. ↩︎
            20. Id. ↩︎
            21. Id. ↩︎
            22. Id.; See also Ga. Code Ann. § 26-2001 (1972) (invalidated by Coker). ↩︎
            23. Fla. Stat. § 921.1427 (2025). ↩︎
            24. Kennedy, 554 U.S. at 407. ↩︎
            25. U.S. Const. amend. VIII. ↩︎
            26. Kennedy, 554 U.S. at 407. ↩︎
            27. Fla. Stat. § 921.1427 (2025). ↩︎
            28. Connecticut Women’s Consortium, The Bond That Harms: The Impact of Trauma Bonding on Human Trafficking Victims, Trauma Matters (2017). ↩︎
            29. How Laws Are Made, USAgov (Nov. 2025), https://www.usa.gov/how-laws-are-made (on file with the Undergraduate Law Review at FSU). ↩︎
            30. How an Idea Becomes a Law, Fla. Senate,, https://www.flsenate.gov/About/HowAnIdeaBecomesALaw (on file with the Undergraduate Law Review at FSU). ↩︎
            31. Ala. H.R. 41, 2026 Leg., Reg. Sess. (Ala. 2026). ↩︎

            Comments

            Leave a comment