TALLAHASSEE, Fla. – The U.S. Supreme Court's recent decision outlawing the death penalty for child rapists was based on a "flaw in fact" that, now discovered, could lead the court to reconsider its landmark ruling, the New York Times reports.
The court's decision, Kennedy v. Louisiana, No. 07-343, hung on the scarcity of jurisdictions where child rapists face the death penalty. The court found that only six states permitted the death penalty for child rapists; the other 30 states with a death penalty and the federal government did not, the Times reports.
The court's decision... hung on the scarcity of jurisdictions where child rapists face the death penalty. According to the Times, “This inventory of jurisdictions was a central part of the court's analysis, the foundation for Justice Anthony M. Kennedy's conclusion in his majority opinion that capital punishment for child rape was contrary to the 'evolving standards of decency' by which the court judges how the death penalty is applied.”
But the court got it wrong, military law blogger Dwight Sullivan discovered. According to the Times, "Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial."
Asks Sullivan: "That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?" According to the Times, one participant in the case answered, "[It] eluded everyone's research."
But the real question is whether the court will actually reconsider its decision in light of the new information. But the real question is whether the court will actually reconsider its decision in light of the new information. According to the Times, this is unlikely, but I'm inclined to think it's not so simple. "Any losing party in the Supreme Court can file a petition within 25 days asking the justices to reconsider their decision," the Times' Linda Greenhouse explains. "Granting such a petition requires a majority vote. Although these petitions are filed rather often, they are, not surprisingly, almost never granted."
However, this was a 5-4 vote with Kennedy in the majority joined by the liberal wing of the court. Kennedy wrote the opinion, and it hinged on "evolving standards of decency." If in 2006 Congress decided child rape could be punished by death, and the president signed off on it, those standards seem to be evolving differently than the court appears to have believed. And if that is the case, an intellectually honest Justice Kennedy may be inclined to join his four more conservative colleagues in at least reconsidering the seminal decision in light of this "new" information.
The real problem for anti-death penalty advocates is Kennedy's intellectual honesty. The real problem for anti-death penalty advocates is Kennedy's intellectual honesty. This recently "discovered" law totally undercuts the majority's rationale. Were the court to reconsider its decision, the only way Kennedy could obtain the same result (prohibiting the death penalty for child rapists) is by abandoning his reasoning on the same issue in virtually the same case in favor of a rationale that avoids "evolving standards of decency" altogether. Considering how recent this decision was, such avoidance is unlikely.
If it's up to Kennedy – and it is – the death penalty for child rapists may be coming back to a state near you. [NYTImes, SCOTUS(PDF), CAAFlog] Justin Hemlepp, TheSequitur.com's editor emeritus, is a recent law school graduate.
