BOISE, Idaho — Gov. Brad Little on Tuesday defended his approval of a law to expand Idaho’s death penalty by adding capital sentencing for those found guilty of aggravated sex crimes with children age 12 and under, a measure that is unconstitutional in the United States.

House Bill 380 overwhelmingly cleared the Legislature last month, and Little last week signed it into law. It is set to take effect July 1, and will allow prosecutors to pursue death sentences for certain crimes outside of murder, which remains federally prohibited.

“Just like capital murder destroys lives, aggravated sexual abuse of a young child devastates victims and families for generations,” Little said in a statement. “The sexual abuse of children is sickening and evil, and perpetrators convicted of these crimes deserve the ultimate punishment.”

Under current U.S. Supreme Court precedent, set in Kennedy v. Louisiana in 2008, capital punishment is forbidden for such crimes against a child that didn’t lead to the victim’s death. The court found the death penalty violates the U.S. Constitution’s Eighth Amendment, which bars both excessive and cruel and unusual punishments. The case was decided by a 5-4 vote.

That decision expanded on a prior Supreme Court landmark ruling from 1977 in Coker v. Georgia, when the justices determined the death penalty was “grossly disproportionate” for cases in which rape victims weren’t also killed. That ruling came in a 7-2 vote.

Led by Rep. Bruce Skaug, R-Nampa, a retired attorney, Idaho lawmakers now hope to challenge the federal prohibition. The complexion of the nation’s high court has since shifted to a right-leaning majority, and it’s long past time to provide the sentencing option to execute people convicted of aggravated sexual assault of minors, Skaug said on the House floor last month during debate of the bill.

“We believe that if this gets to the U.S. Supreme Court, it will turn around the other direction — a states’ rights issue, that we can go after the most heinous criminals as we see fit,” Skaug said. ”And I think this is appropriate.”

Little’s office did not return a request Tuesday from the Idaho Statesman for his response to concerns about approving an unconstitutional law. Neither did the Office of Idaho Attorney General Raúl Labrador, a fellow Republican, who would be tasked with defending the new law if it is legally challenged in court.

Florida passed a similar law in 2023, and Tennessee approved its own version to allow pursuit of the death penalty in child rape cases last year. Five other states are currently considering such legislation, Skaug told House colleagues.

“It’s a trend in this country that goes against the things that are so horrific that we cannot mention them,” he said. “It makes you sick.”

The American Civil Liberties Union of Idaho chastised Little and state lawmakers for approving a law they are aware is unconstitutional.

“We would hope our state leaders have more respect for our constitution and the rule of law, but they have allowed personal political posturing to guide them rather than clear rulings from the U.S. Supreme Court,” Rebecca De León, spokesperson for the ACLU of Idaho, said in a written statement to the Statesman. “While we understand that lewd conduct with a minor is a serious and devastating crime to commit, we do not think that the death penalty is an appropriate punishment for that crime.”

Idaho’s second death penalty-related bill this year

The successful push for the law this year in Idaho was Skaug’s second attempt in as many legislative sessions to pass it. The bill failed a year ago when it received House approval, but did not receive a hearing in the Senate.

Skaug and bill cosponsor, Sen. Doug Ricks, R-Rexburg, also teamed up this session to pass House Bill 37, which will make a firing squad Idaho’s lead execution method starting in July 2026. Little signed that into law as well.

“Idaho also just became the ONLY state to make death by firing squad the primary method of execution,” Little, a two-term Republican, said in his statement. “I commend my partners in the Legislature for strengthening Idaho’s already powerful ‘tough on crime’ reputation among the states.”

Although none of the Legislature’s 15 Democrats supported the firing squad bill, members of the state’s superminority party were split on whether to add the death penalty sentencing option for certain aggravated child sex crimes. Just two Republicans opposed the bill, while eight Democrats voted to support it.

“I submit to you that those who have a propensity for 12-year-olds know that,” Rep. John Gannon, D-Boise, an attorney, said during debate in favor of the bill on the House floor. “They need to do something about it now. They need to take care of their problem, and — very importantly — they need to stay away from kids.”

Senate Minority Leader Melissa Wintrow, D-Boise, was the lone Democrat to debate against the bill. She questioned the legal scrutiny paid to the proposed law, which would result in a “huge policy shift” concerning Idaho’s death penalty.

When the new law goes into effect this summer, it will make those people found guilty of lewd and lascivious acts on a child age 12 and under eligible for the death penalty if certain aggravating factors are met. Alternatively, the convicted person would receive a mandatory minimum sentence of 30 years in prison.

“That’s pretty harsh, but so is the rape of a child,” Skaug told House colleagues. Those aggravating factors can include multiple victims or severe physical injuries during an assault, he added.

The law also creates a mandatory minimum sentence of 25 years in prison if two aggravating factors are met for sex crimes against children between the ages of 13 and 15.

“There is nothing more evil than a rape of a child, and that’s what this bill is about,” Skaug said. “Idaho, with the most lenient (laws) needs to take some action. This has been needed for some time.”

The choice over whether to pursue the death penalty in such cases will still fall to prosecutors, and the sentencing decision to a jury, Ricks said on the Senate floor.

“This will not be something that’s done lightly,” he said. “This is not something that will come up a lot, thank goodness, but when it does then this an option.”

_____

©2025 Idaho Statesman. Visit at idahostatesman.com. Distributed by Tribune Content Agency, LLC.