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DOJ sends “regrets” on omitted cite

The Justice Department has notified the Supreme Court that a legal development on the death penalty in federal law was left out of the Court’s consideration of Kennedy v. Louisiana (07-343). In that decision, on June 25, the Court ruled 5-4 that it is unconstitutional to impose the death penalty for the crime of raping a child.

That opinion basically had two parts. In the first, the Court made a survey of trends in state legislatures, in Congress, and in the courts, leading the Court to conclude that there is a national consensus of opinion against capital punishment for child rape. In the second part, the Court, exercising its own “independent judgment,” concluded that that punishment would not be proportional for that crime.

It appears that the Justice Department message to the Court had to do only with the first part of that calculation — the survey of laws and official actions.  Even though the United States government was not a party in the case, and did not join in as an amicus, the Department accepted responsibility for the omission of a citation to a 2006 act of Congress that provided a death sentence for rape of a child, when the prosecution occurred in the military criminal justice system.

The Department statement on Wednesday said: “We regret that the Department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.  It’s true that the parties to the case missed it, but it’s our responsibility.  Yesterday, shortly after hearing of the [2006] law, we advised the Clerk’s office at the Supreme Court.”

The notice to the Court Clerk was by telephone, not by a formal filing, according to Justice Department spokesman Erik Ablin. The statement went on to say that “Only parties to a case may petition for rehearing.  If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing.”

The statement concluded: “Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question of whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment.  Cf. Loving v. United States, 517 U.S. 748, 755 (1996).”

In Justice Kennedy’s opinion for the Court in the Louisiana case last month, he wrote in the survey section that “as for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.  See 108 Stat. 1972 (codified as amended in scattered sections of 18 USC).  Under 18 USC 2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim’s death.”

Justice Samuel A. Alito, Jr., who wrote for the four dissenters, challenged the significance of the majority’s conclusion that the absence of such a sentence in federal law. Alito wrote that, “due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court…Congress’ failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress’ assessment of our society;s values.”

The Justice Department statement seems to indicate — as is commonly assumed — that the Court would not alter its decision in Kennedy v. Louisiana unless it first received and then granted a rehearing petition.  To grant such a rehearing, one of the Justices in the majority must switch sides and there must then be a majority to reexamine the ruling.

Louisisna officials have not yet filed a rehearing petition, and counsel for the Louisisna inmate, Patrick Kennedy, are most unlikely to do so.

The lack of a citation to the 2006 federal law first came into public view on a military law blog, CAAFlog.  Another military law expert apparently saw it, and notified The New York Times. That other expert, Eugene Fidell, is the husband of a Times reporter, Linda Greenhouse, who then filed a story in the newspaper on Wednesday.  (Ms Greenhouse reported Wednesday to a legal blog, Lawbeat, how she learned of the actual origin of her story — from her husband.)

The high visibility of The Times report got the attention of White House reporters, who asked about it at a briefing Wednesday, and of the Justice Department, which responded with the statement confessing its regrets and assuming responsibility.

Since the omission of a precedent applied only to half of the Supreme Court’s rationale (and not to the broader half, saying that the death penalty would now be reserved for crimes in which the victim dies), and since it was an omission by lawyers in their pleadings, the chances that the Court would change the result in the Louisiana case seem unlikely.

It also might be a question, if rehearing were sought, whether the state of Louisiana’s lawyers had defaulted, procedurally, in failing to cite the federal law in 2006 in their briefs in the case, and thus could not raise it now.

The Court is sometimes a stickler on such matters, as it was earlier in the just-past Term when it allowed the state of Texas to move forward toward executing a Mexican national because of a procedural flaw — one that even President Bush and the World Court had suggested should be overlooked (Medellin v. Texas, 06-984).

The Court also ruled a year ago, in Bowles v. Russell (06-5306), that it had no authority to grant any relief to a criminal defendant who filed an appeal three days late, even though the defense lawyer obtained the extra three days through a mistake by a federal trial judge.