Legal News

Military Death Penalty for Child Rape: Constitutional After Kennedy?

By Dan Slater

In what the NYT’s Linda Greenhouse is calling “a highly unusual admission of error,” the DOJ, in response to Greenhouse’s report yesterday that the Supreme Court erred in its decision in the child rape case of Kennedy v. Louisiana, has acknowledged that government lawyers should’ve known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Court of that fact while the justices were considering whether death was a constitutional punishment for the crime. Here’s today’s NYT story.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement. “We regret that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”

Justice Kennedy’s conclusion in the 5-4 majority opinion that child rape was not a capital offense under federal law (or the 30 other states that have the death penalty) and therefore Louisiana’s death penalty for child rape did not meet the “evolving standards of decency” by which the Court judges the constitutionality of capital punishment turned out to be wrong. Not only did Congress add child rape to the military death penalty in 2006, but President Bush, in an executive order last September, added the new provision to the current version of the Manual for Courts-Martial.

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, first reported the news of the oversight on his blog, in a post entitled “The Supremes Dis the Military Justice System.”

But despite the DOJ’s regret, only parties to a case can ask the justices to reconsider their decision — which could happen. Steve Wimberly, the first assistant in the Jefferson Parish, La., DA’s office, which handled the case for the state, told the NYT that while no decision had yet been made, “we are strongly considering the option of asking the justices to reconsider the case.” Louisiana Governor Bobby Jindal, who’s been pegged as a possible McCain running mate, has denounced the court’s ruling and is reportedly involved in deciding how to proceed.

But if Kennedy’s decision in Kennedy stands, another question arises: is the military death penalty for child rape now unconstitutional? The DOJ did not concede as much, but in its statement noted that, in a 1996 decision, Loving v. United States, which upheld the military’s general death penalty provision, the justices simply assumed, without deciding, that the Court’s death penalty jurisprudence was fully applicable to the military. No military death penalty prosecution has been brought since the 2006 child rape provision took effect.

Full post as published by Law Blog - WSJ.com on July 03, 2008 (boomark / email).