In the final brief to be filed before the Supreme Court decides whether to reconsider a major ruling on the death penalty, the state of Louisiana cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too. 

“This Court has never resorted to its independent judgment alone to void a punishment under the Eighth Amendment,” the state’s lawyers said in a supplemental brief filed in Kennedy v. Louisiana (07-343).  The Court, at the request of Louisiana, is pondering whether to rehear its June 25 decision striking down the death sentence for the crime of raping a child.

The Justices are scheduled to consider the rehearing petition at their private Conference on Monday.  If rehearing is granted, word of that may become known as early as next Tuesday.  A denial might not become known until Monday, Oct. 6, at the formal opening of the new Term.

In reaching its decision at the end of last Term in Kennedy, the Court used its own “independent judgment,” but also relied upon a finding that there is a “national consensus” among policymakers and legislatures against that penalty for that crime.  Louisiana, joined by the Justice Department, has sought to cast doubt on the ruling, but especially on the second part of that equation, saying that the Court overlooked recent action by Congress and the President in allowing the death penalty for child rape as a matter of military criminal law.

“The recent action by Congress and the President,” Louisiana’s new brief argued, “evince their independent judgment that the death penalty is appropriate for child rape.  Such decisions are relevant not only as indicia of national consensus, but also because they inform this Court’s own judgment about what is cruel and unusual.” Quoting from a decision by the Justices last Term, the brief added: ” ‘The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one…’ “  (That is a quote from Boumediene v. Bush.)

 Conceding that the Court could, if it wished, base the ruling only on its own judgment, Louisiana said that would “require rehearing by jettisoning settled Eighth Amendment jurisprudence.”  The precedents that now exist, it noted, treat the Court’s independent views as “but one aspect of a complex Eighth Amendment analysis….Such a dramatic departure from precedent would need to be tested and shaped appropriately through reargument.”

Louisiana, of course, seeks not only a new hearing on the issue, but also a decision coming out of that review that would uphold its death penalty for rape of a child.  The law can apply when the rape victim is not yet 13 years old.

The new brief went to considerable lengths to try to persuade the Court that the fact that an existing federal law on death penalty for child rape was only a military law, binding in that sector alone, should not make a difference in judging whether it contributes to a “national consensus” in favor of the penalty.

That was a response to the claim by lawyers for Patrick Kennedy, the death-row inmate involved in the case, that military law was beside the point in the Eighth Amendment analysis.  Louisiana countered: “This Court has never held that military personnel could be subject to punishments that it deems ‘cruel and unusual’ for the rest of the population….When Congress enacts a law, be it military or civilian, that law is relevant objective evidence of a national consensus.”

If the Court does not consider military law as part of the Eighth Amendment calculus, the state asserted, that would “subject the military justice system to piecemeal application of this Court’s holdings and invite uncertainty.”

Because the Court’s ruling was a categorical one, striking down the death penalty for child rape in every situation, the state added, the Court cannot leave its impact on military justice for another day, as Kennedy’s lawyers had suggested.

The brief, taking note of the fact that the Court, in judging other crimes and their eligibility for the death penalty, had cited foreign law for guidance, argued that “the failure to consider domestic military law would a fortiori call into question any reliance on the laws and practices of foreign jurisdictions.”

Louisiana also sought to inject a bit of politics into its argument that there is a building consensus in favor of the death sentence for child rape.  It included in its appendices statements from presidential candidates John McCain and Barack Obama criticizing the ruling in Kennedy v. Louisiana.  Also included was a July 10 letter, written to members of the Court, by 85 members of Congress urging the Court to reconsider the decision because of the omission of the military law on the subject.

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