Court Won't Reconsider Ban on Execution for Child Rape

By Robert Barnes
Washington Post Staff Writer
Thursday, October 2, 2008

The Supreme Court yesterday declined to revisit its June decision that imposing the death penalty on child-rapists is unconstitutional, although two justices said they would have reopened the case and two others sharply criticized the majority.

The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the justices had not been presented with what the state and federal government considered an important fact: that Congress in 2006 made child rape a capital offense under military law.

No one argued that point -- it seems none of the parties even knew it at the time -- before the majority ruled at the end of the term that there was no evidence of a national consensus in favor of putting child-rapists to death.

But that was only part of the court's reasoning. It also said that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty, just as the court had held that raping an adult did not merit execution.

Today, the same five justices said that the opinion would be amended to reflect the existence of the military law but that it did not bear upon their reasoning.

The military law "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," wrote Justice Anthony M. Kennedy, author of the original decision.

He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Without comment, Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the rehearing. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., said he thought there was no point in rehearing the case, because the majority would reach the same -- and in his mind, misguided -- conclusion.

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case," Scalia said. "The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the Eighth Amendment's prohibition of cruel and unusual punishments renders capital punishment unacceptable for the crime of rape.

Scalia continued: "Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' " The June decision was among the court's most controversial of the term. Both presidential candidates criticized it.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana was one of six states that allowed the death penalty for the crime.

Louisiana did not note in its briefs the little-known change that Congress made to military law provisions or an executive order, signed by President Bush, that added the provision to the Manual for Courts-Martial.

The Justice Department said it erred in not seeking to join the case or advising the court of the law.

The court rarely grants new hearings in cases it has decided. A rehearing would have required five votes, including one from the previous majority.

The existence of the military law came to light only after a civilian Air Force lawyer, Dwight Sullivan, noted it in his military law blog after the decision. His report led to a front-page New York Times story on the omission.

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