Lawyers for the state of Louisiana asked the U.S. Supreme Court on Monday to reconsider its decision in June striking down laws that made child rape a capital offense. The lawyers said the court's decision overlooked two crucial legal developments: a 2006 federal law and a 2007 executive order making child rape a capital crime under military law.
“Both political branches have recently and affirmatively authorized the death penalty for child rape,” the petition said. “Such a clear expression of democratic will, at the very least, calls into question the conclusion that there is a ‘national consensus against' the practice.”
In his opinion for the majority in June, Justice Anthony Kennedy counted up the number of jurisdictions that allowed the death penalty for child rape. Finding only six states, he concluded that “on balance” and in light of “evolving standards of decency,” there is a national consensus against such punishment.
But none of the briefs filed in the case had alerted the justices to the two federal legal developments arguably altering that calculus.
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The lead lawyer on the rehearing petition is Neal Kumar Katyal, a law professor at Georgetown University who is usually associated with liberal causes. Katyal represented Salim Ahmed Hamdan in the Supreme Court in a 2006 case that rejected the Bush administration's initial plans to put Guantanamo prisoners on trial before military commissions.
“I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters,” Katyal said. “Since the Supreme Court's decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the state of Louisiana gave me the chance to help, I was happy to accept.”
The Justice Department did not file a brief in the case, Kennedy v. Louisiana, but it did issue a statement expressing regret for failing to tell the court about the 2006 law after the oversight was noted in a military law blog. In a statement on Monday, Erik Ablin, a spokesman for the department, said lawyers there would review the petition and consider whether to seek the court's permission to offer the government's views on the case.
Jeffrey Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Kennedy, a civilian, Fisher said, and Congress has not made child rape a capital offense for civilians.
Fisher added that military law has long made rapes of both adults and children capital offenses in some circumstances. The innovation of the 2006 law was only to break out children as a separate category.