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October 2 2008 | UNITED STATES


Supreme Court won't revisit child rape execution case

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New York Times

USA: Court Won't Revisit Death Penalty Case

 The Supreme Court on Tuesday voted, 7 to 2, not to reconsider its decision last June that the death penalty is unconstitutional punishment for the rape of a child.
On the 1st day of its new term, the court slightly amended its June ruling, but left the basics of it alone. As a result, death penalty laws in Louisiana and 5 other states that allowed the execution of child rapists in instances in which the child was not killed remain void. Justice Anthony M. Kennedy, writing on Tuesday for the 5 justices in the original majority, said some facts that the court was unaware of when it ruled on June 25 did not alter the court’s analysis.
The court's announcement that it would not rehear the case, which originated in Louisiana, was not a surprise, since petitions for rehearing cases already decided by the Supreme Court are very rarely granted. But the circumstances of the case, known as Kennedy v. Louisiana, were unusual, in that the arguments and deliberations were accompanied by a factual error that surfaced only after the justices ruled.
In its 5-to-4 decision in June, the court reasoned that, because so few states allowed the execution of child rapists, there was a national consensus against applying the ultimate punishment to such criminals. Not long afterward, it was disclosed that the lawyers arguing the case, and the justices themselves, had been unaware of a 2006 amendment to the Uniform Code of Military Justice, specifically making child rape committed by service members a capital crime.
Thus, the State of Louisiana argued in urging the justices to reopen the case, the high court should review its conclusion that there was a national consensus against the execution of child rapists.
Not so, Justice Kennedy wrote on Tuesday. The 2006 change to the military-justice code merely tinkered with a statute that had authorized capital punishment for the rapes of children (and adults) all along, he wrote. Besides, he said, "authorization of the death penalty in the military sphere does not indicate that penalty is constitutional in the civilian context."
In the Louisiana case, Patrick Kennedy was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter. Joining Justice Kennedy in the majority ruling voiding the penalty in June were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, who were in the minority in June, voted on Tuesday not to rehear the case. Justice Scalia called the original decision disingenuous, but suggested that nothing would have changed it. "The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision," Justice Scalia wrote on Tuesday.
Justices Clarence Thomas and Samuel A. Alito Jr. voted on Tuesday to rehear the case, but did not offer reasons.


Court won't revisit child rape execution case

 The U.S. Supreme Court rejected on Wednesday a request by Louisiana and the Bush administration to revisit its recent ruling that outlawed the death penalty for those convicted of raping a child.
The state and the Justice Department had asked the nation's high court to take the rare step of reconsidering its decision because they neglected to tell the court that Congress in 2006 had made child rape a capital offense under U.S. military law.
By a 7-2 vote, the court refused to revisit its decision issued at the end of June. Republican presidential candidate Sen. John McCain, his Democratic rival Sen. Barack Obama and other politicians all said they disagreed with the ruling.
Justice Anthony Kennedy said for the court majority that the Constitution barred a state from imposing the death penalty for the rape of a child when the crime did not result, and was not intended to result, in the victim's death.
He said a national consensus exists against capital punishment for the crime of child rape and that the death penalty, based on current evolving standards, should be reserved for the worst crimes that take the victim's life.
Only Justices Clarence Thomas and Samuel Alito sided with the state and the administration and would have heard the case again.
The court amended its opinion by adding a footnote to take into account that U.S. military law allows capital punishment for the crime of child rape.
"We find that the military penalty does not affect our reasoning or conclusions," the court said in the footnote.
Justice Kennedy said in a statement joined by the court's four liberal justices that rehearing the case simply was not warranted.
"Authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context," he wrote.
The military's use of the death penalty for child rape "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," Kennedy said.
The Supreme Court had previously ruled on the death penalty and rape in 1977, when it outlawed executions in a case in which the victim was an adult woman. It said then that the death penalty was an excessive penalty for a rapist who does not take a human life.
The ruling in June struck down laws in Louisiana and 5 other states. It affected only two men who were on death row in Louisiana for the rape of a child.
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