Justice Department Admits Snafu in Death Penalty Case

The U.S. Justice Department has admitted it erred when it failed to inform the U.S. Supreme Court that a law adopted in 2006 authorized the death penalty for child rape in military cases.

The solicitor general’s office did not file a brief in the case, Kennedy v. Louisiana, the New York Times reports. “We regret that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed,” the Justice Department said in a statement.

Justice Department lawyers weren’t the only ones who missed the fact. Justice Anthony M. Kennedy and the authors of 10 Supreme Court briefs also failed to notice, the Times reported yesterday. Kennedy wrote the wrote the majority opinion last week in the 5-4 case that barred the death penalty for child rape.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the statement said.

In his majority opinion, Kennedy wrote that child rape is not a capital offense under the laws of 44 states or the federal government. He said that, based on consensus and the court’s own independent judgment, the penalty is unconstitutional for rapes that don’t end in death.

Dwight Sullivan, a civilian defense lawyer who handles death penalty appeals for the Air Force, pointed out the error on his blog last weekend.