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Louisiana seizes on U.S. oversight

- The Washington Times - Thursday, July 3, 2008

The state of Louisiana is looking at options to get the U.S. Supreme Court to reconsider its recent ruling forbidding the death penalty in child rape cases after the U.S. government took the rare step of acknowledging it made an oversight.

The Supreme Court's June 25 decision said there was no legal precedent for the death penalty, but the court neglected to consider a 2006 federal law that says the rape of children by military personnel could bring capital punishment.

Attorneys for the state of Louisiana and the Justice Department made the same oversight in petitions they filed with the federal courts.

Supreme Court procedures allow parties to a case to ask for a new hearing within 25 days after a decision is issued. Although many parties have petitioned for the reviews, they almost never have been granted in the court's history.

Louisiana Gov. Bobby Jindal said he has spoken with lawyers who represented the state "and have encouraged them both to seriously review these new facts and consider petitioning the court for a rehearing."

The case involved a Harvey, La., man who was convicted of brutally raping his 8-year-old stepdaughter. A jury decided he should get the death penalty under a 1995 state law.

Five other states also allow the death penalty for child rape. Those laws were invalidated by the Supreme Court ruling.

"The Supreme Court got this case wrong, plain and simple," said Mr. Jindal, a Republican.

The Justice Department has no plans to independently ask the Supreme Court to hear the case again.

"Only parties to a case may petition for rehearing," the Justice Department said in a statement. "If a petition for rehearing is filed, the [Justice] Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the court to provide our views on the petition for rehearing."

The Supreme Court grants new hearings "extremely rarely" and even less often changes its own decisions, said Orin S. Kerr, a constitutional law professor at the George Washington University Law School. "I don't think there's been a petition like this granted in decades."

The Justice Department acknowledged that its attorneys mistakenly failed to consider the National Defense Authorization Act for Fiscal Year 2006 in its legal briefs.

"We regret that the Department didn't catch the 2006 law when the case of Kennedy v. Louisiana was briefed," the department said in its statement. "It's true that the parties to the case missed it, but it's our responsibility."

The mistake was first mentioned over the weekend on a military blog, CAAFlog (http://caaflog.blogspot.com), run by U.S. Marine Corps Reserve Col. Dwight Sullivan. It said, "That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?"

The New York Times reported it Wednesday, prompting the Justice Department to issue its statement.

Although the law applies only to military personnel, the Supreme Court has not decided whether it could set a precedent to execute civilians who rape children.

"Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment," the Justice Department statement said.

After the Supreme Court ruling last week, Mr. Jindal said he would seek to enact laws to override the decision.

The 5-4 decision written by Justice Anthony M. Kennedy said the Eighth Amendment would forbid the death penalty for raping a child as "cruel and unusual punishment."

The Eighth Amendment "requires that resort to capital punishment be restrained, limited in its instances of application and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim's life," the decision said.

The Supreme Court's ruling was denounced by the Bush administration as well as presumptive presidential nominees Sens. John McCain, a Republican, and Barack Obama, a Democrat.