Everybody makes mistakes.
You may recall that last week, the U.S. Supreme Court ruled 5-4 that imposing the death penalty for child rape violates the Eight Amendment’s ban on cruel and unusual punishment.
A blogger who read the brief noticed something was amiss. Col. Dwight H. Sullivan found an error in the court’s 65-page ruling.
In his majority opinion, Justice Anthony Kennedy wrote that six jurisdictions authorize the death penalty for child rape (Louisiana, Georgia, Montana, Oklahoma, South Carolina). Both the majority and minority expressly stated that Congress had not enacted a law permitting death for child rape. But both were wrong. Congress has enacted a law permitting death for child rape. There are seven jurisdictions in the U.S., not six, that authorize the death penalty for child rape.
Sullivan writes (emphases added):
“Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that “[u]ntil the President otherwise provides pursuant to” UCMJ article 56, “the punishment which a court-martial may direct for an offense under” the amended UCMJ article 120 “may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.
“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?”
Why, indeed? It seems that no party involved in the case knew about the military statute. That’s a big screw-up, especially when you consider how many Ivy League-educated law clerks were working on this case. Why didn’t they know about the military provision? If one blogger knew about it…anyway, since Sullivan brought the error to light, mainstream newspapers like the New York Times covered the story (see Justice Dept. Admits Error in Not Briefing Court and In Court Ruling on Executions, a Factual Flaw).
This weekend, the Washington Post called for the case to be reopened.
What’s the big deal, you’re probably asking, about overlooking a military statute? The oversight may have little bearing on the ruling, but as the Washington Post notes, the court’s “legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations.”
While agreeing with the decision to remove death as a penalty for rapes in which the children aren’t killed, the Post nevertheless believes the court should reopen the case and hear arguments on the significance of the military statute.
I wholeheartedly agree. I doubt the case will be reopened, and I doubt the military statute will make a difference. But if there’s even a tiny possibility the court will reverse itself and rule that death for the rape of a child is not cruel and unusual, it’s worth it. I want those perverts to fry.
Is that too judgmental? 
{ 19 comments }
Yes! That’s too judgmental, and not very Christian like.
I support capital punishment. As a Christian I also believe that a person on death row should be told about the saving grace of Jesus. If that person believes and asks for that saving grace then God will save them from eternal punishment. Thus they will die to this world but not the next.
No, La Shawn, Todd is incorrect. You are crying out for justice. “How long, O Lord…?”
Wow…no matter how one feels about it morally, that’s one big legal gaffe.
I’ve always been against capital punishment, but Todd,here’s a flash: trials are ABOUT being judgmental! That’s their purpose.
Christians are only supposed to avoid judging HYPOCRITICALLY, not to avoid all judgment. And if punishing a criminal is “judgmental,” what do you call saying someone is “not very Christian-like”?
Whether or not you agree with the decision, the case certainly should be reopened if a mistake of this magnitude has been made.
I definitely agree with you on this one. If someone ever touched my daughter inappropriately, I would hope that first, I could control my anger long enough to allow the courts to mete out justice. And second, I would hope that the sentence handed down would be the harshest possible. Frankly, if there was something harsher than death, that is what child rapists would deserve!!
If one may remind others, one of the original meanings of ”felony” was ‘crime punished by death’. It has not always been restricted to premeditated murder, but has included such things as forgery, arson, rape of any kind, treason, espionage, certain types of theft, and others. I believe that forcible rape of a minor is a crime whose nature demands the most extreme punishment, and that means execution. Offer the condemned a Christian advisor, certainly. But hang him, quickly.
Now, that is an aside.
The real issue is the Court. Perhaps I missed it, but a quick glance through the Constitution does not reveal ANY grant of power that would permit the Judiciary to determine ‘changing standards of public decency’ or whatever mealy-mouthed nonsense used this time. Such matters are supposed to be addressed by the Legislative branches, acting upon the express wishes of the citizens of this once-free land. Bluntly, the type of slow-motion coup d’etat being conducted by the courts constitute the sort of ”high crimes and misdemeanors” that demand impeachment and removal of these self-appointed dictators in black robes. ALL five of the scoundrels guilty of this travesty should have been out of office the very same hour and day, and sent scurrying off whatever far off land would accept their presence. FIRE these bums! They have forgotten that they work for us. FIRE them!
That’s a good point. The court is supposed to apply the Constitution, and ONLY the Constitution, to the law in question.
I agree with La Shawn – the case should be re-opened, but it probably will not be. The Imperial Judiciary does not admit to making mistakes.
The Supreme Court didn’t make a mistake. Military law and civil law ARE two different jurisdictions. Military cases are never cited in and do not set precedent for civil cases. If anthing, the military law is unconstitutional; it’s not the other way around.
Fry? In Malaysia you get hung by the neck until dead.*
*They had to add the ‘until dead’ part because one jackass managed to survive *three* botched hangings, and they pretty much had to let him go because he’d paid the price for his crimes – he’d been hung.
The only problem I foresee with killing these jerks off is if there is the possibility of innocence. But if not, then yeah, go for it.
And I say this as a conservatively-inclined, evangelical Anglican of the Province of SEA (as hidebound as you can be)
#11 Beth states:
“The Supreme Court didn’t make a mistake. Military law and civil law ARE two different jurisdictions. Military cases are never cited in and do not set precedent for civil cases. If anthing, the military law is unconstitutional; it’s not the other way around.”
However, LaShawn noted in the post that:
“Both the majority and minority expressly stated that Congress had not enacted a law permitting death for child rape.”
The Supreme Court was incorrect. Congress did authorize a law permitting death for child rape. Based on their erroneous statement to the contrary, it is safe to assume that they did not consider the law Congress had passed.
This is a flawed decision, because the Supreme Court did not thoroughly review the existing law.
The Supreme Court may decide to strike down the existing law. That is another matter entirely. It has nothing to do with precedent. Furthermore, the court is considering a punishment under criminal law. We do not have the death penalty in civil law. However, I am sure you meant to say “civilian” law as opposed to “military” law.
Beth: Military cases are never cited in and do not set precedent for civil cases.
No, theoretically not. But then neither are international laws. That, however, hasn’t stopped the Supreme Court from basing some of their decisions on the laws of other nations. They’re getting more and more off-base (putting it mildly) every year.
You’re right. I did mean civilian law. I’m not a lawyer, just a paralegal.
If the Supremes disallowed the death penalty on the basis of being cruel and unusual, how long do you think it’s going to be before someone says the obvious and that will eliminate the death penalty entirely. I understand that they said “cruel and unusual” in light of it being “just a rape” with no death of the victim, but they have spoken the magic words and invoked the 8th amendment prohibiting cruel and unusual punishment. After all, is the cruel and unusual part of punishing the perpetrator any different whether the victim lived or dies? You could argue about whether it’s _deserved_ or not, but if the punishment is in itself cruel and unusual, there’s a problem. The 8th specifically prohibits cruel and unusual.
And PS, LaShawn…glad you’re back on politics…I don’t do the music stuff unless you want to get into classical! Your site has always been good for discussion because you keep such a close eye on it and keep the trolls at bay.
Not to go all esoteric —– but, the phrase “cruel and unusual” is not “cruel or unusual” or “cruel and/or unusual.”
When a woman says she is looking for a tall and handsome man, she means both. A good looking dwarf or an ugly nine footer is not going to work.
“Cruel and unusual punishment” is clearly setting two standards both of which must be met. In the opinion of this everyday citizen, there is nothing cruel or unusual about the death sentence.
I understand that the method of carrying out the death sentence has been under plenty of scrutiny, but in the history of the United States, the death sentence is not an “unusual” punishment.
Now this line of reasoning means that “cruel” punishment is permitted, so long as it is not unusual. I agree. If the majority support the death penalty, then it is not “cruel.”
When we were a young country, people sometimes died from whippings delivered as a punishment. We now believe that to be “cruel” and we have banned it, which also makes it unusual.
>>In the opinion of this everyday citizen, there is nothing cruel or unusual about the death sentence.>>
And this everyday citizen agrees with you – but I’ll bet that there’s a challenge to a death sentence within a year, on the basis of cruel and unusual.
I wouldn’t mind being wrong. Sometimes being wrong is a _good_ thing!
A day late and a dollar short, but…The “cruel and unusual” clause came about beause punishments of the time (18th century) WERE cruei and, to say the least, unusual; being hung, drawn, and quartered meant being hung until you were barely conscious, cut down, and disemboweled. The hangman then burned your intestines in front of you. THAT is cruel and unusual; executions in this country do not begin to approach “cruel and unusual” proportions.
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