Associated Press
Tuesday, July 22, 2008

Louisiana prosecutors asked the Supreme Court yesterday to revisit its recent decision outlawing the death penalty for people convicted of raping children.

The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military convicted of child rape.

The court almost never grants such requests, but lawyers for Louisiana said their situation is different. The 5 to 4 decision, written by Justice Anthony Kennedy, said the absence of any recent executions for rape and the small number of states that allow such executions demonstrate "there is a national consensus against capital punishment for the crime of child rape."

When Congress in 1994 expanded the number of federal crimes that could get the death penalty, it did not include raping a child, Kennedy said.

Only after the decision was issued on June 25 did anyone point out that Congress changed that law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.

The ruling drew harsh criticism from politicians in Louisiana and in other states. It takes five justices, a majority of the court, to reconsider a ruling.