Torres: DeSantis misses mark on new death penalty laws | Opinion

I once witnessed the state of Florida execute a child rapist.

I was not sad about it despite my personal reservations about the death penalty. Mark Dean Schwab was already a convicted child rapist by the time he kidnapped, raped and murdered 11-year-old Junny Rios-Martinez in 1991. He was executed for murder and if anyone deserved to be executed it was him.

But this week, Gov. Ron DeSantis signed a new law expanding the death penalty to include non-murdering child rapists. The bill, which takes effect Oct. 1, now makes sexual battery of a child under 12 a capital crime. This goes against the Constitution. The Eighth Amendment prohibits cruel and unusual punishment and to execute someone who did not take a life would certainly fall into the cruel and unusual category.

But that's not even the main reason the new law is a huge mistake.

Before you start labeling me as the protector of the child rapists, hear me out. The first thought I had when I heard this news was that more children, many more children, were going to die. Why? What would turn a child rapist into a murderer? What about getting rid of the only witness who can send them to death row?

I believe Schwab killed Junny because another conviction would have netted him a life sentence. He was trying to get rid of the witness/victim. Schwab should never have been free in the first place. He served less than 50 percent of his eight year sentence for a previous rape because of a since-changed law regarding how time an inmate had to serve.

What motivation is there now for a child rapist to release their victim? If you're going to face the death penalty anyway then why not get rid of the person who can send you to death row?

"Offenders acting on sexual impulse rarely think of legal consequences, but if they do and realize that they are facing the same punishment as killing the child, the law will have a horrible, horrible, unintended consequences," agreed Melbourne attorney Jessica Travis. "The governor’s ‘tough on crime’ stance may backfire, and our children will be the fall out."

But that's not the only reason DeSantis' bill is ill-advised.

Last month DeSantis signed legislation no longer requiring juries to vote 12-0 in favor of the death penalty during the punishment phase of trials after a conviction. In fact, Florida can now boast being the state with the lowest death penalty threshold in the country. The law makes it so only eight of 12 jury members are needed to recommend a death sentence.

This will likely result in legal challenges that will need to be decided by the highest court in the land.

"The law contains at least two separate, significant constitutional issues," said Melbourne attorney Scott Robinson. "First is the death penalty for sexual battery which the United States Supreme Court has previously said was unconstitutional. The second is removing the requirement for a unanimous decision by the jury for death which United State Supreme Court has also said was unconstitutional. This means that there will be at least two federal questions baked into every case."

That means cases will be tied up for years.

Because of the built-in appeals to the death penalty cases, families of victims already wait for years and years. The family of Junny Rios-Martinez waited 17 years to see Schwab receive his lethal injection. This meant nearly two decades of reliving their horror and anguish at every court filing, appeal, hearing etc.

I often wondered if Junny's family would have gotten more peace had Schwab simply been sentenced to life in prison without the possibility of parole. In Florida, that does happen since the state abolished parole for cases that happened after the mid-1990s. Life means just that, life.

"You finish your life sentence in Florida being carried out in a pine box," said Melbourne attorney Kepler Funk. "Prison is where child rapists belong, forever separated from law abiding citizens, but I do not believe that government should be in the business of killing its citizens, ever.”

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Back to the death penalty for child rape.

Judges and juries in death penalty cases are tasked with considering aggravating and mitigating factors before imposing a sentence of death. In many sexual assault cases involving children, the perpetrator was once too victimized.

"This does not excuse a sex offender," attorney Travis said. "They should still be punished. But some offenders are treatable, and I’ve seen offenders who commit lesser crimes ― touching on the outside of clothing ― get the same punishment as those who commit the worst crimes. The witch hunt against sex offenders ignores the different degrees of criminal conduct and throws away those who can be rehabilitated. In addition to being unconstitutional, the new death penalty law perpetuates the witch hunt because it does nothing to solve the real problem ― the cycle of abuse."

Even if you don't believe in treatment or that sex offenders can be rehabilitated, what about the very real possibility of executing an innocent person? It's not a very good idea to send non-murderers to death row. Of course, this leads to the broader discussion of whether we should even have the death penalty.

"The Governor wishes us to trust that the criminal justice system is always just," attorney Funk said. "That in the most important matter, life and death, we should trust the government. I disagree that government is flawless when it comes to the criminal justice system and therefore the death penalty. We know that the criminal system is run by humans and therefore it is flawed. We know that Florida has held people on death row for years until new science and technology clearly exonerated them. People were actually innocent as they languished on death row. These facts, lead to the inescapable conclusion that we should not trust the government to always get it right, because it doesn’t."

Then there is the cost. It's strange that DeSantis is looking to send even more people to death row while other states are looking to abolish it due to financial considerations. For example, the state of Louisiana spent $7.7 million on death penalty defense even though it hasn't executed a single prisoner in 13 years.

Republican Senator Carolyn McGinn of Kansas recently called for the end of the death penalty after learning death penalty cases cost roughly 70 percent more than non death penalty cases.

"I think in many cases life without parole is more punishing than the death penalty, and is perhaps less expensive in the long run," said local attorney Steve Casanova. "In addition, the U.S. Supreme Court has ruled that the death penalty only applies if a life was taken in a heinous criminal act."

There are some prosecutors who would like to see the death penalty go away altogether as well.

In 2022, 56 elected prosecutors issued a joint statement urging an end to the death penalty citing a "broken system."

Incredibly there hasn't been a death penalty cost study in Florida since 2000 but many experts say it costs the state 10 times more to keep a prisoner on death row than it does a prisoner sentenced to life.

Well, DeSantis is always boasting about Florida's financial reserve.

Contact Torres at jtorres@floridatoday.com. You can follow him on Twitter @johnalbertorres or on Facebook at facebook.com/FTjohntorres.

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This article originally appeared on Florida Today: Florida death penalty cases will be mired in courts for years to come