Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child.  Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

The brief also argued that the Kennedy opinion did not go so far as to strike down the death penalty for child rape if that crime occurs in the military context.  Should there be such a prosecution in the military in the future, the brief said, “this Court will have ample opportunity to consider…whether special military requirements entitle the military to more leeway than states under the Eighth Amendment.”

That argument sought to counter a claim by the federal government that the Kennedy opinion is so sweeping that it bars the military from imposing a death sentence for child rape, as the government says is now permitted under a 2006 federal law and a presidential order.

Meanwhile, the Justice Department in its own new filing urged the Court to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. In a brief invited by the Court, Acting Solicitor General Gregory G. Garre said that the Court should not nullify that penalty in the face of support for it by Congress and the President.  “The Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate,” Garre contended.

The Court is considering a plea by the state of Louisiana to rehear its decision.  The state has been told to file a brief by next Wednesday.  Once that brief is in, the Court will then be in a position to decide whether it will reopen the case and, if so, whether to modify its opinion. It has the option of simply denying the rehearing petition without comment, although its call for briefs on the question may make that outcome less likely.  (The Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term.  That could mean some action might be known as early as Tuesday, Sept 30.)

The federal government’s views on the issue closely follow what it said on June 28, when it asked the Court for permission to file a document supporting Louisiana’s rehearing request. The Court has never accepted that document, however; the Court’s Rules do not seem to allow such a filing.  In any event, those views are now on the record formally after the Court’s invitation to submit a brief.

Garre’s brief focuses on the Court’s omission, in its June 25 opinion, of any mention of a federal law that Congress passed in 2006 that, Garre said, authorized a death sentence within the military court system for the crime of child rape.  The opinion also did not mention a presidential Executive Order in 2007 finding that an appropriate maximum sentence, Garre noted.  Both of those actions, the Acting Solicitor said, contradict the Court’s conclusion that there is now a “national consensus” against that punishment for that crime.

Although the state of Louisiana, in its rehearing petition, and the Justice Department, in the brief it previously sought to file (and did make public), had discussed the omissions from the Kennedy opinion, Kennedy’s lawyers had not taken a formal position on the controversy before Wednesday.  In doing so, they directly disputed the government’s — and Louisiana’s — interpretation of what Congress and the President have done on the subject. 

 Nothing in the 2006 law, the Kennedy brief contended, “changed military law to authorize a new penalty for rape.  For generations preceding [the 2006 statute], military law provided that the punishment for rape — of anyone, adult or child — was ‘death or such other punishment as a court-martial may direct.’”  What Congress did in 2006, it went on, was to remove the word “death” from that punishment provision, leaving it to the President to prescribe the range of punishment for rape in the military setting. In 2007, President Bush directed that military law “continue, as before, to provide that the maximum possible punishment for adult or child rape is death.”  It is not even clear, the brief suggested, that the President has the authority to authorize a military penalty that is no longer specifically authorized in the military criminal code.

Moreover, the brief added, “the military, to our knowledge, has not sought to impose the death penalty for rape in over forty years” — not since 1961.  None of the nine individuals now on military death-row were convicted of child rape; all received the sentence for murder, the brief said.

“Military law,” it continued, “certainly does not warrant revisiting this Court’s decision now…This Court has never looked to military law to provide guidance in conducting Eighth Amendment analyses of state capital punishment laws, for military laws raise distinctive issues not present in the civilian context.”

Even if military law did count in this analysis, the brief contended, the longstanding “(and long dormant) capital rape provision would not evince public support for executing offenders” such as Kennedy, who is not subject to military law.

“The only relevant question regarding federal law in a case in which a person challenges a state death sentence as disproportionate punishment is whether federal law renders such an individual death-eligible….As this Court’s opinion in Kennedy correctly indicated, federal law does not render a civilian like Patrick Kennedy death-eligible for this crime,” the brief said.

When the Supreme Court struck down the death penalty for raping an adult, in the 1977 decision in Coker v. Georgia, Kennedy’s brief recalled, “no party argued that the then-existing military law allowing capital punishment for rape…was relevant to that analysis, and this Court did not reference that law in its opinion.  Nor has the Court referenced military law in any of its other modern Eighth Amendment decisions concerning the permissible reach of the death penalty.”

Congress’ actions on the penalty for child rape issue, the brief contends, should be regarded as “non-events” in view of the fact that neither the state of Louisiana, briefs supporting its position, the federal government, or anyone in the White House or Congress “mentioned military law while this case was under submission.”

It argued that if the 2006 law “had triggered a ‘change’ in federal law to reflect a supposedly ‘evolving’ ‘national consensus’ in favor of executing child rapists, one would have expected at least someone in federal or state government to have been aware of it.”

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