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? 
