Adding lewd conduct with a child as a crime punishable by death could be problematic

BOISE (Idaho Reports) — A proposal to make lewd conduct with a child punishable by death could drastically increase the number of death penalty cases in the state.

In 2022 alone, Idaho prosecutors filed 217 cases charging adults with lewd conduct with a child under 16, a crime currently punishable by up to life in prison.

In January, Rep. Josh Tanner, R-Eagle, introduced HB 405, which would make that crime punishable by death. That bill has not yet received a public hearing. House Judiciary, Rules and Administration Committee Chairman Bruce Skaug, R-Nampa, is a co-sponsor of the bill.

On Tuesday, Skaug told Idaho Reports he plans to give the bill a hearing and hasn’t heard much negative pushback yet. The bill is modeled after a bill that passed in Florida in 2023.

Should the legislation become law, only cases that involved children under the age of 12 would be punishable by death. The Idaho Supreme Court case data obtained by Idaho Reports does not break out the ages of victims involved in each case. Some cases also had multiple charges of lewd conduct with a child under 16, meaning either multiple incidents of abuse occurred, or the case involved multiple child victims.

When including juvenile defendants, Idaho saw a total of 328 cases in 2022 involving the charge of lewd conduct with a child under the age of 16. Again, the data obtained from the Idaho Supreme Court did not differentiate how young the victims involved were at the time of the crime.

For comparison, Idaho State Police reported 51 murders statewide in 2022. Not all of those cases would have been first-degree murder, which is the only charge currently punishable by death. Second-degree murder is not punishable by death.

Most states in the country that allow the use of the death penalty only use it for murder convictions.

In 2008, the United States Supreme Court found in Kennedy v Louisiana that sentencing a person to death for any crime other than homicide or crimes against the state, such as terrorism, is unconstitutional per the Eighth Amendment’s right against the infliction of cruel and unusual punishment. In that case, at the time, Louisiana permitted use of the death penalty in sentencing for the rape of a child younger than 12.

Additionally, the United State Supreme Court found in 2004 in Roper v Simmons that it is unconstitutional to sentence a person to death who committed their crime as a juvenile. Tanner’s bill does not specify if juvenile defendants would be eligible for the death penalty, should the bill become law.

In December of 2023, the state of Florida first utilized its new law when a prosecutor announced plans to seek the death penalty against a man accused of raping a child younger than age 12, according to the Tallahassee Democrat newspaper. The suspect, Joseph Andrew Giampa, is not yet convicted.

Should the bill pass, it would be the prosecutor’s responsibility to decide whether he or she wanted to file a notice of intent to pursue the death penalty, as they currently do in first-degree murder cases. The majority of first-degree murder cases are not death penalty cases, but are still punishable by up to life in prison.

The state of Idaho already faces major issues finding the chemicals needed to execute a person by lethal injection, which led to the passage of a bill last year that brought back the potential use of the firing as a means of execution if the state can’t procure the necessary chemicals. The state has not yet constructed a facility to perform the executions by firing squad.

IDOC spokesman Jeff Ray said IDOC is working with the Division of Public Works for the engineering, design, and construction phase. “Policy changes will be developed and presented to the board for consideration once we have a better sense of the proposed physical plant design,” Ray said. “We don’t have an estimated timeline for completion yet.”

Idaho currently has seven men and one woman on death row.

A date for the hearing on HB 405 has not been set yet.