SCOTUS Blog's Lyle Denniston reports, "Court urged to hold fast against death for child rape." Here is an extended excerpt:
Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child. Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.
The brief also argued that the Kennedy opinion did not go so far as to strike down the death penalty for child rape if that crime occurs in the military context. Should there be such a prosecution in the military in the future, the brief said, “this Court will have ample opportunity to consider…whether special military requirements entitle the military to more leeway than states under the Eighth Amendment.”
That argument sought to counter a claim by the federal government that the Kennedy opinion is so sweeping that it bars the military from imposing a death sentence for child rape, as the government says is now permitted under a 2006 federal law and a presidential order.
Meanwhile, the Justice Department in its own new filing urged the Court to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. In a brief invited by the Court, Acting Solicitor General Gregory G. Garre said that the Court should not nullify that penalty in the face of support for it by Congress and the President. “The Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate,” Garre contended.
The Court is considering a plea by the state of Louisiana to rehear its decision. The state has been told to file a brief by next Wednesday. Once that brief is in, the Court will then be in a position to decide whether it will reopen the case and, if so, whether to modify its opinion.
John Marshall Law School prof Corey Rayburn Yung, of the Sex Crimes blog has this post with a link to his paper, "Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?"
I have more to say about each of the briefs, but you will have read my thoughts in my new article which I am happy to say will be forthcoming in the Northwestern University Law Review Colloquy. The Colloquy has promised me publication by the end of the month which is fantastic and really shows the potential of online law reviews.
StandDown's earlier coverage of Kennedy v. Louisiana begins here. My commentary on Kennedy v. Louisiana and Texas lawmakers is here. Earlier coverage of the case and ruling is here.
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