Six Republican States Wrote Death-Penalty Laws They Know Are Currently Unconstitutional. Today, Tennessee’s Fix to Its Own Law Takes Effect — the Next Move in a Multi-Year Plan to Get the Supreme Court to Reverse Itself.
In 2008, the Supreme Court ruled 5–4 in Kennedy v. Louisiana, 554 U.S. 407, that the death penalty is unconstitutional for child rape that does not result in the victim’s death. Writing for the majority, Justice Anthony Kennedy held that non-homicide crimes against individuals “cannot be compared to murder in their severity and irrevocability,” and warned that “when the law punishes by death, it risks its own sudden descent into brutality.” Justice Samuel Alito’s dissent, joined by Chief Justice Roberts and Justices Thomas and Scalia, argued the majority had imposed a “blanket rule” barring capital punishment for child rape “regardless of the facts of the case.”
Since 2023, a bloc of Republican-controlled legislatures — Florida and Tennessee first, then Idaho in 2025, and Alabama, Arkansas, and Oklahoma since — has passed statutes imposing the death penalty for aggravated child rape. Every governor, attorney general, and legislative sponsor behind these laws is a Republican, and they are not hiding the strategy: with a 6–3 conservative majority now on the Court, they are deliberately writing laws that conflict with Kennedy, in a calculated, multi-year bid to manufacture the test case that lets the Justices revisit it — the same playbook states used to build the vehicle that became Dobbs.
The news hook today: Tennessee’s HB 1454, signed by Gov. Bill Lee (R-TN) on April 14, 2026 as Public Chapter 693, takes effect July 1, 2026 — today. It adds twelve new death-penalty aggravating factors specific to child rape, fixing a defect that left Tennessee’s original 2024 law with no usable mechanism to actually impose the sentence it authorized.
- 5–4 — the 2008 Supreme Court vote in Kennedy v. Louisiana holding the death penalty unconstitutional for child rape that doesn't kill the victim · Source: Justia
- 6 states — Florida, Tennessee, Idaho, Alabama, Arkansas, and Oklahoma now impose the death penalty for aggravated child rape, in direct conflict with Kennedy · Source: DPIC
- Public Chapter 693 — Tennessee's HB 1454, closing the aggravating-factor gap in its 2024 law, effective today, July 1, 2026 · Source: Tennessee General Assembly
- 29–0 / 77–4 — HB 1454's lopsided margins in the Tennessee Senate and House, March 2026 · Source: Local3News
- 15 states — Republican attorneys general who wrote to U.S. Attorney General Pam Bondi in Sept./Oct. 2025 urging DOJ support to challenge Kennedy · Source: Louisiana Illuminator
- $51 million/year — what Florida's death penalty system costs the state above the cost of life-without-parole prosecutions · Source: DPIC / Florida Bar cost studies
Kennedy v. Louisiana arose from a Louisiana statute that made the rape of a child under 12 a capital offense. Patrick Kennedy was sentenced to death; the Supreme Court struck the sentence down. The majority’s reasoning was categorical: the Eighth Amendment’s ban on cruel and unusual punishment limits the death penalty to homicide and a narrow set of crimes against the state (treason, espionage) where the loss is irrevocable in the way murder is. Justice Kennedy’s opinion did not dispute the severity of child rape; it held that death as a punishment for a non-homicide crime against an individual “is not a proportional punishment.”
The dissent is the blueprint the current statutes are built on. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, argued the majority’s categorical rule ignored aggravating facts — a defendant’s prior record, the number of victims, the brutality of the specific crime — that could justify capital punishment even for a non-homicide offense “regardless of the facts of the case.” That dissent lost 4–5 in 2008. The states writing these new laws are betting that with three of that dissent’s authors’ philosophical successors now forming part of a 6–3 majority, the vote count looks different today.
Florida was the first state to act. In May 2023, Gov. Ron DeSantis (R-FL) signed HB 1297, amending Fla. Stat. § 794.011 to make aggravated child sexual battery a capital offense, effective October 1, 2023. The bill’s design was deliberate: State Sen. Jonathan Martin (R-FL), a former prosecutor, built in a specific penalty-phase procedure meant to give the Supreme Court a clean vehicle to revisit Kennedy. DeSantis was explicit about the goal at signing: “We think that in the worst of the worst cases, the only appropriate punishment is the ultimate punishment, and so this bill sets up a procedure to be able to challenge that precedent.”
Florida is also, notably, the only state actually turning the statute into prosecutions rather than leaving it symbolic. DPIC executive director Robin Maher has observed that Florida “appears to be the only state actually seeking the death penalty in trials” under one of these post-2023 laws. Two Florida cases are currently pending, both involving defendants who remain presumed innocent: In Palm Beach County, Josue Mendez-Sales, 26, and Pablo Cobon-Mendez, 23, were indicted in August 2025 on charges of sexual battery of a child under 12 — the alleged victim was Mendez-Sales’s 7-year-old daughter. Prosecutors filed a death penalty notice in October 2025; both men have pleaded not guilty and are held without bond. In Putnam County, Dimeco Henderson, 34, who has a prior 2010 conviction, faces four counts of capital sexual battery involving a 10-year-old and her friend; prosecutors filed a death notice in June 2025. Neither case has gone to trial, and no Supreme Court cert petition has been filed in either — both remain pending in Florida courts.
Note: the defendant in this earlier Hernando County case, Nathan Holmberg, died by apparent suicide before trial; his case will not proceed. It is included here only as background on how Florida prosecutors have approached these charges under the 2023 law, not as an active test case.
Imposing the death penalty for pedophiles is appropriate punishment and necessary to deter other offenders. Proud that Florida has led the way in standing up for victims and holding the worst predators accountable.
Tennessee followed Florida within a year. Gov. Bill Lee (R-TN) signed the original bill in 2024, effective July 1 of that year, sponsored by State Sen. Jack Johnson (R-Franklin) and State Rep. William Lamberth (R-Portland/Sumner). Lamberth was blunt about the intent: “When you rape a child, that is exactly what should occur,” he said, referring to the death penalty. Johnson framed it as a direct wager on the current Court: “Given the makeup of the current court, there is a strong possibility that Kennedy v. Louisiana could be overturned.”
But the 2024 law had a defect nobody caught until a real case tested it: its aggravating-circumstance list, the legal mechanism a jury needs to actually impose a death sentence, applied only to murder cases — not to the new child-rape capital offense. Hamilton County District Attorney Coty Wamp discovered the gap firsthand while prosecuting Stephen Rapaport, a Signal Mountain, Tennessee man who pleaded guilty in January 2026 to three counts and was sentenced to two consecutive life terms plus 60 years. The death penalty was never on the table in that case — not because prosecutors chose not to seek it, but because the statute gave them no working aggravating factor to charge it with.
“There was no factor that applied to the most egregious case of child rape.”
Hamilton County District Attorney Coty Wamp, on the gap in Tennessee's 2024 law
That gap is what HB 1454 closes, effective today. The bill, sponsored by State Rep. Greg Martin (R-Hixson), adds twelve new death-penalty aggravating factors written specifically for child rape convictions. Martin described it plainly: “This bill updates the list of aggravating circumstances to fit the horrific crime conviction of rape of a child.” State Sen. Janice Bowling (R-TN) was equally candid about why now: “the atmosphere is different on the Supreme Court,” she said, calling the effort “simply challenging a ruling.” Wamp estimated the fix will make the death penalty usable in “20 to 40” cases a year statewide once prosecutors can actually charge the aggravating factors HB 1454 creates. The bill passed the Tennessee Senate 29–0 and the House 77–4 in March 2026; Lee signed it April 14, 2026, as Public Chapter 693.
Every sponsor and signer of Tennessee’s child-rape death-penalty statutes is a Republican, and this page states that plainly because it is a fact, not an editorial choice. But the bill did not pass without Democratic objection. Rep. Gloria Johnson (D-TN) warned the law “could discourage child rape victims from reporting abuse,” particularly in cases where the abuser is a family member or someone the victim knows — the majority of child sexual abuse cases. House Democratic Caucus Chair Brandon Puttbrese (D-TN) was more pointed about the sequencing: “That law is likely unconstitutional. It seems like they are now trying to do this law to clean up their unconstitutional mess.”
This is not six states acting independently. In September and October 2025, Florida Attorney General James Uthmeier (R) led a fifteen-state letter of Republican attorneys general — including Louisiana AG Liz Murrill (R), whose state was the losing party in the original 2008 case, plus Alabama, Alaska, Arkansas, Idaho, Indiana, Missouri, Montana, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia — urging U.S. Attorney General Pam Bondi (R) to have the Justice Department support states’ efforts to challenge Kennedy in court. The letter did not mince words about the political calculation behind it: “With President Trump’s strong leadership and with principled, rule-of-law Justices on the Supreme Court, Kennedy’s days are numbered.”
Congress has its own parallel track. Rep. Nancy Mace (R-SC) introduced a federal companion bill, the Death Penalty for Child Rapists Act, on February 26, 2026. It would amend 18 U.S.C. §§ 2241(c), 2243(a), and 2244, plus the Uniform Code of Military Justice, to authorize capital punishment for aggravated child rape under federal and military law — extending the same strategy beyond state courthouses to Washington.
The abuse and trauma this predator inflicted is sick, and he deserves every moment of this sentence. Florida will keep pursuing the toughest possible penalties for those who prey on our children.
Whatever the Supreme Court eventually decides, capital prosecutions carry a price tag that state budgets absorb long before any execution occurs. Florida Bar and DPIC cost studies put Florida’s death penalty system at $51 million a year above what the same cases would cost if prosecuted as life-without-parole — and estimate each actual execution costs Florida taxpayers roughly $24 million, once appeals, specialized counsel, and decades of incarceration are counted. One complex Florida capital-defense case, involving a conflict counsel appointment, ran $41 million over roughly 45 months. The expense is not abstract at the local level either: two capital cases forced Jefferson County, Florida to freeze employee raises and cut its library budget to cover the litigation costs.
None of that cost data resolves the constitutional question these states are teeing up. It does mean that whatever the Supreme Court eventually decides — and no cert petition has yet been filed in either pending Florida case — state and county governments are already spending real money prosecuting cases built to reach a Court that has not agreed to hear one.
What is happening in these six states is a textbook exercise in American federalism and separation of powers: state legislatures, understanding perfectly well that their statutes currently conflict with binding Supreme Court precedent, are passing them anyway — on the calculated bet that a changed Court will eventually say the precedent itself was wrong. That is a legitimate, if unusual, way for states to test the durability of constitutional rulings; it is the same basic mechanism that produced Dobbs. Tennessee’s HB 1454, taking effect today, is not a new front in that strategy — it is Tennessee patching the tool it needs to actually use the law it already passed.
What to watch next: whether Florida’s pending Palm Beach and Putnam County prosecutions reach trial and a death sentence — the likeliest vehicle for an actual cert petition; whether Tennessee prosecutors, newly armed with HB 1454’s aggravating factors, bring the first capital child-rape case under the fixed law; and whether Congress moves on Rep. Mace’s federal companion bill. Until the Supreme Court agrees to hear a case, Kennedy v. Louisiana remains good law nationwide — which is precisely why these statutes are, as written today, unenforceable in the way their sponsors ultimately want them to be.
This page found two verified YouTube clips and two verified X posts directly on point, and no verified Truth Social post from any Florida or Tennessee official on this specific topic — so the video and social record here is 2 YouTube + 2 X + 0 Truth Social. We are disclosing that gap rather than filling it with an invented post.
- 1.Washington Examiner — 'Supreme Court protected child rapists from execution. Florida and Tennessee said no.'
- 2.Justia — Kennedy v. Louisiana, 554 U.S. 407 (2008), full opinion
- 3.Death Penalty Information Center — Kennedy v. Louisiana resource page
- 4.Tennessee General Assembly — HB 1454 bill status (Public Chapter 693)
- 5.Death Penalty Information Center — 'Tennessee Authorizes Death Penalty for Child Sexual Assault in Direct Challenge to Supreme Court Precedent'
- 6.Death Penalty Information Center — 'Alabama House Joins Florida and Tennessee to Advance Unconstitutional Expansion of the Death Penalty'
- 7.Death Penalty Information Center — 'Florida Prosecutors Seek First Death Sentence Under New Child Sex Abuse Law'
- 8.Louisiana Illuminator — '15 Republican attorneys general urge DOJ to help revive the death penalty for child rape'
- 9.NewsChannel9 Chattanooga — 'Supreme Court ruling could complicate Tennessee's child rape death penalty push' (DA Coty Wamp)
- 10.Local3News — 'Tennessee lawmakers pass bill expanding death penalty eligibility in child rape cases'
- 11.ABA Journal — 'Florida cases seeking death penalty for child sex abuse could test precedent in Supreme Court' (Robin Maher, DPIC)
- 12.U.S. News / Associated Press — 'Some GOP-led states seek to bring back the death penalty for child rape convictions'
Last updated July 1, 2026