By Ruth Brown, Idaho Reports

The House Judiciary, Rules and Administration Committee met Wednesday and voted to hold a bill that would add a sex crime against children to the list of crimes punishable by death in Idaho.

The bill sponsored by Rep. Bruce Skaug, R-Nampa, HB 405, would change the charge of lewd conduct with a child younger than age 16. If the victim involved is younger than age 12, the crime could be punishable by death, rather than its current maximum sentence of life in prison.

The bill is modeled after a law that passed in Florida in 2023. The committee had concerns about the bill’s mandatory minimum prison sentence of 10 years, and it was held at the call of the chair, meaning Skaug could bring the bill back with changes.

In 2022 alone, Idaho prosecutors filed 328 cases charging adults and juveniles with lewd conduct with a child under 16, according to Idaho Supreme Court data. That number doesn’t differentiate the age of the victims in the cases. By comparison, Idaho saw 51 murders statewide in 2022, according to Idaho State Police. 

Under current law, the only crime punishable by death is first-degree murder, and a death penalty conviction must include aggravating circumstances.

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 under the Eighth Amendment’s prohibition against 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.  

Skaug said he believed Florida had a head start on the issue and said he recognized that it is currently unconstitutional to sentence a person to death for sexual abuse of a child.

“I think that case was decided wrongly,” Skaug said. “It takes away the state’s rights on what to do in the most heinous of cases for our children, for our victims.”

Skaug argued that the Louisiana case was decided in a 5-4 U.S. Supreme Court decision and all of the justices on the majority side are now gone.

Rep. Chris Mathias, D-Boise, argued that such abuse cases are often committed by a person known to the victim. He said making the charge a capital crime would put more pressure on a child not to tell authorities for fear of helping kill a family friend or relative.

“Not only will the perpetrators go to these kids and say ‘Hey, don’t tell on me or I’ll get in trouble,’ now they’ll say ‘Hey, don’t tell on me or the state will kill me. I will be executed,’” Mathias said. “So I think this is going to create a chilling effect on the willingness of these children to come forward.”

The committee also discussed whether a person who committed lewd conduct with a child younger than age 12 as a juvenile could face the death penalty.

Skaug confirmed that yes, a juvenile could face the death penalty as the law is written, but a prosecutor would need to pursue it.

Rep. David Cannon, R-Blackfoot, is a defense attorney and said the prosecution would need to first send any juvenile charged with the crime over to adult court to pursue the death penalty.

However, 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.

Mathias made the substitute motion to hold the bill in committee at the call of the chair after Rep. Kenny Wroten, R-Nampa, first made a motion to send the bill to the floor with a do-pass recommendation.  

The Idaho Legislature has repeatedly passed laws trying to make executions more accessible. In 2023, legislators legalized the use of the firing squad as a form of execution. In 2022, the Legislature passed a law granting anonymity to the manufactures of the chemicals used in executions by lethal injection.

The committee’s decision comes the day after a death warrant was issued for Thomas Creech, Idaho’s longest-serving man on death row. His execution is set for Feb. 28.

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