U.S. Supreme Court
Supreme Court Denies Rehearing in Child Rape Case
Posted Oct 1, 2008 9:13 AM CDT
By Debra Cassens Weiss
Updated: The U.S. Supreme Court has refused to grant a rehearing of its decision holding it is unconstitutional to impose the death penalty for child rape, SCOTUSblog reports.
The court modified the majority and dissenting opinions in the case based on a missed fact in the original decision: The military has a law authorizing the death penalty for child rape.
The modified opinions leave in place the original 5-4 lineup.
A new footnote to the majority opinion says originally it “neither noted nor discussed the military penalty for rape under the Uniform Code of Military Justice,” but adds, “we find that the military penalty does not affect our reasoning or conclusions.”
The State of Louisiana and the Justice Department had sought a rehearing in the case because the original majority opinion was based in part on a national consensus against capital punishment for the crime.
A statement by Justice Anthony M. Kennedy, joined by other justices in the majority, explains why the justices feel a rehearing is not warranted.
Even though the military had a law imposing the death penalty for rape for more than 100 years, it has not been carried out for almost 50 years, the statement said (PDF posted by SCOTUSblog). It also noted that provisions in a 2006 bill modifying the military’s sexual assault statutes are unclear.
“In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context,” the statement says.
Justices Clarence Thomas and Samuel A. Alito Jr. would have granted the petition for rehearing.
Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., explained that he was voting to deny a rehearing because “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.”
Scalia said the majority had in effect substituted its own judgment to rewrite the Eighth Amendment’s ban on cruel and unusual punishment.
“While the new evidence of American opinion is ultimately irrelevant to the majority’s decision, let there be no doubt that it utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference,” Scalia wrote in his statement (PDF posted by SCOTUSblog).
Updated to add details as they became available.