Legal News

Supremes Deny Rehearing in Child Rape Case

By Dan Slater

This just in, from the hardworking Ben Winograd over at SCOTUS blog: The High Court has denied rehearing in Kennedy v. Louisiana, the case in which it struck down the death penalty for the crime of child rape in Louisiana. But the Court modified both the majority and dissenting opinions.

The result, writes Lyle Denniston, was that the Court left intact its decision, not only that a death sentence could not be imposed for that particular crime, but also that death could not be imposed for any crime in which the victim is not killed.

For past LB coverage of the Kennedy case, click here, here and here. Thanks to SCOTUS blog, here’s the modified opinion and here’s Justice Scalia’s statement denying rehearing. Justice Scalia, who joined Justice Alito’s dissent in Kennedy, writes:

I am voting against the petition for rehearing because 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. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” . .. 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.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts. . . .

Second, JUSTICE KENNEDY speculates that the Eighth Amendment may permit subjecting a member of the military to a means of punishment that would be cruel and unusual if inflicted upon a civilian for the same crime. That is perhaps so where the fact of the malefactor’s membership in the Armed Forces makes the offense more grievous. One can imagine, for example, a social judgment that treason by a military officer who has sworn to defend his country deserves the death penalty even though treason by a civilian does not. (That is not the social judgment our society has made, see 18 U. S. C. §2381, but one can imagine it.) It is difficult to imagine, however, how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.

We imagine that news of the denial comes as a bit of a letdown for Dwight Sullivan. Sullivan, who now works for the Air Force as a civilian defense lawyer handling death penalty appeals, was the blogger who revealed a possible flaw in the facts of Justice Kennedy’s majority opinion in Kennedy (no relation). In his reasoning, Justice Kennedy noted that neither the U.S. government nor the overwhelming majority of states permit capital punishment for child rape. But Sullivan later wrote, in a blog post entitled “The Supremes Dis the Military Justice System,” that, in 2006, Congress revised the sex crimes section of the Uniform Code of Military Justice 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.

Full post as published by Law Blog - WSJ.com on October 01, 2008 (boomark / email).