Supreme Court used flawed assumption on death penalty case

Justices not told of federal law shift

WASHINGTON - When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states - not in any of the 30 other states that have the death penalty and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court's analysis, the foundation for Justice Anthony M. Kennedy's conclusion in his majority opinion that capital punishment for child rape was contrary to the "evolving standards of decency" by which the court judges how the death penalty is applied.

Kennedy's confident assertion about the absence of federal law was wrong.

A military law blog pointed out during the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were contained in the National Defense Authorization Act that year. President Bush signed that bill.

Anyone in the federal government - or anywhere else, for that matter - who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana's death penalty for child rape was constitutional.

The provision was the subject of a post on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.

Sullivan was reading the Supreme Court's decision on a plane and was surprised to see no mention of the military statute. "We're not talking about ancient history," he said in an interview.

Jeffrey L. Fisher, a Stanford Law School professor who successfully represented the defendant in the case, Patrick Kennedy, said that the defense legal team had actually looked into what military law said on the subject. They found an old provision making rape a capital offense but it predated the court's modern death penalty jurisprudence, under which the death penalty for the rape of an adult woman was ruled unconstitutional in 1977.

"We just assumed it was defunct," Fisher said of the military provision. "We figured if somebody in the government thought otherwise, we'd hear about it."

Lawyers in the solicitor general's office had no comment yesterday. Paul D. Clement, solicitor general when the case was argued, has resigned to teach at Georgetown University Law Center.

Any losing party in the Supreme Court can file a petition within 25 days asking the justices to reconsider their decision. Granting such a petition requires a majority vote. R. Ted Cruz, who argued the case in support of Louisiana on behalf of a coalition of 10 states, said the chance that the court would reconsider the decision was "extremely unlikely."