Legal News

NYT?s Greenhouse: Supreme Court Erred in Child Rape Case

By Dan Slater

For all the national controversy generated by Supreme Court opinions, it’s not often that we find ourselves disagreeing with the justices on the facts. But the NYT’s Linda Greenhouse, who, after 30 years covering the Scotus beat will put away her typewriter this month and report to Yale Law School, thinks she’s caught the Court out on a flaw in its facts.

Last week, in Kennedy v. Louisiana, the child rape case, Justice Anthony Kennedy (no relation), writing for a 5-4 majority, ruled categorically that the death penalty is forbidden for crimes against individuals that do not result in death. The decision nullified a Louisiana law that provided capital punishment for raping a child under 12. The law was since amended to apply to raping a child under 13. (Click here and here for past LB coverage of the Kennedy case.)

When Justice Kennedy concluded 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, he based that holding, at least in part, on a factual determination that a child rapist could face death in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

“It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong,” writes Greenhouse in today’s NYT. Over the weekend, reports Greenhouse, Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals, wrote on his blog, in a 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.

As it turns out, Kennedy was not alone in his oversight. None of the briefs filed in the case mentioned the law. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional. Jeffrey L. Fisher, the Stanford prof who successfully rep’d the defendant in the case, said that his research hadn’t turned up the law.

Will the case be reconsidered? Unlikely. While a losing party in a Supreme Court case can file a petition within 25 days asking the justices to reconsider their decision, the petitions require a majority vote and are almost never granted. Ted Cruz, who argued the case in support of Louisiana on behalf of a coalition of 10 states, told the NYT that the chance the Court would reconsider the decision was “extremely unlikely” even if Louisiana brought the omission to the justices’ attention. “A member of the majority would have to change his mind, but it’s obvious that both sides gave this case very careful consideration,” said Cruz.

Full post as published by Law Blog - WSJ.com on July 02, 2008 (boomark / email).