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Despite gaffe, Supreme Court won't revisit landmark child-rape ruling

Five justices footnote their June opinion about a 'national consensus' against using the death penalty for child rapists.

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The high court ruling invalidated Kennedy's death sentence and established that capital punishment for the rape of a child – regardless of the circumstances of the crime or the age of the victim – would be an unconstitutional form of cruel and unusual punishment under the Eighth Amendment. The majority opinion said a societal consensus had formed against the practice.

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Within hours of the ruling, presidential candidates from the two major political parties denounced it.

"I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate the Constitution," said Democratic presidential candidate and former constitutional law professor Barack Obama.

Republican candidate John McCain denounced the ruling as "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime."

Senator McCain added, "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

Both the solicitor general and the state of Louisiana urged a rehearing.

"The court's decision is grounded on a materially erroneous understanding of federal law," wrote Acting Solicitor General Gregory Garre in a brief to the court.

"Contrary to statements in the opinion, both Congress and the president have recently determined that a maximum sentence of death is appropriate and proportionate for cases involving the extraordinarily grave crime of child rape," Mr. Garre wrote. "That determination by two co-equal branches of the national government not only is entitled to great weight, it also underscores the emerging 'national consensus' supporting – not opposing – capital punishment in cases of child rape."

Lawyers for the convicted rapist, Kennedy, countered in their brief that the existence of the military's child-rape law warranted little more than a footnote in the opinion. "This court has never looked to military law to provide guidance in conducting Eighth Amendment analyses of state capital punishment laws," Jeffrey Fisher, a Stanford Law School professor serving as Kennedy's lawyer, wrote in his brief.

Lawyers for Louisiana countered in their brief that military law is American law, and that a statute enacted by Congress expresses the will of the people.

"When Congress enacts a law, be it military or civilian, that law is relevant objective evidence of a national consensus," Neal Katyal, a professor at Georgetown Law Center representing Louisiana, wrote in the Louisiana brief.

The state's brief says that federal and state lawmakers have overwhelmingly supported the death penalty for child rape. The military law passed the US House by a vote of 374 to 41 and the US Senate 95 to 0. The state laws also passed by significant margins: Louisiana, 113 to 23; Georgia, 195 to 2; Montana, 126 to 23; Oklahoma, 127 to 16; South Carolina, 83 to 26; and Texas, 152 to 18.