NOT THE SHARPEST KNIVES IN THE DRAWER: They May Be Supreme, But They Are Not Infallible
Last week’s shocking and senseless Supreme Court ruling that imposing the death penalty in child rape cases is unconstitutional appears to have been based on incomplete and inaccurate facts. The blooper was first spotted by blogger Col. Dwight Sullivan, a civilian defense lawyer who handles death penalty appeals for the Air Force:
Wednesday's controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the
The majority later stated: “Thirty-seven jurisdictions - 36 States plus the Federal Government - have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child.”…
But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six. [Emphasis, The Stiletto.] …
How come neither side in the Kennedy case even mentioned it?
In the first of two follow-up articles acknowledging the blogger’s scoop, New York Times reporter Linda Greenhouse, who covers the high court, explains:
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion 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.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 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 and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
The next day, Greenhouse added:
In a highly unusual admission of error, the Justice Department acknowledged … that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.
“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,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v.
The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law. …
Speaking to reporters on Wednesday morning, the White House press secretary, Dana Perino, said the administration “was disturbed by the New York Times report that the court’s decision might be based on a mistake.”
Perino said the DOJ is trying to figure out next steps. The
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