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.

Less than a week before its October term is set to begin, the US Supreme Court became a spectacle of sound and fury on Wednesday over a landmark decision handed down three months ago declaring that the death penalty for child rapists is cruel and unusual punishment.

At issue was whether the high court would revisit the landmark 5-to-4 decision after revelations last summer that contradicted the majority justices' conclusion that a "national consensus" had emerged against the death penalty for the rape of a child.

The June 25 decision said only six states had laws authorizing capital punishment for child rape. But unknown to the justices at the time they wrote the opinion, Congress in 2006 had amended the nation's military law to authorize capital punishment in such cases for child rapists. In 2007, President Bush issued an executive order concurring with the congressional action.

These actions were not discussed in the case briefs to the high court or at oral argument.

In light of the new information, the US Solicitor General's Office and the state of Louisiana asked the court to rehear the case and take a fresh look at whether a "national consensus" had really formed against the practice.

The answer came on Wednesday. The author of the opinion, Justice Anthony Kennedy, and the four other members of the majority stood behind the landmark decision, agreeing only to amend the opinion with a footnote mentioning the congressional action.

"The court has determined that rehearing is not warranted," Justice Kennedy said in a three-page statement.

Justice Antonin Scalia issued a blistering criticism of the court's action in standing by the prior decision. "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," Justice Scalia writes in a three-page statement joined by Chief Justice John Roberts.

Scalia says the majority justices simply imposed on the country their own policy judgment concerning capital punishment for child rape.

"While the new evidence of American opinion is ultimately irrelevant to the majority's decision, let there be no doubt that it utterly destroys the majority's claim to be discerning a national consensus and not just giving effect to the majority's own preference," Scalia writes.

According to a statement by the court, Justices Clarence Thomas and Samuel Alito were the only justices who voted to grant the petition to rehear the case.

In his majority opinion, Kennedy had supported the court's finding of a national consensus by noting that only six states had enacted laws making child rape a capital offense. He said five states had proposed similar legislation, but two of those efforts failed and the other three were still pending. In addition, Kennedy said that no individual had been executed in the US for the rape of an adult or child since 1964.

"We conclude there is a national consensus against capital punishment for the crime of child rape," Kennedy wrote in the June 25 opinion.

The decision came in a case called Patrick Kennedy v. Louisiana (07-343). Mr. Kennedy had been convicted and sentenced to death for raping his 8-year-old stepdaughter in March 1998.

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.

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.

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