[Deathpenalty] death penalty news----USA

[Rick Halperin]

July 2


USA:

In Weighing Death Penalty, a Flaw in Fact


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 6 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 courts analysis,
the foundation for Justice Anthony M. Kennedys 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.

It turns out that Justice Kennedy's confident assertion about the absence
of federal law was wrong.

A military law blog pointed out over 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
in the National Defense Authorization Act that year. President Bush signed
that bill into law and then, last September, carried the changes forward
by issuing Executive Order 13447, which put the provisions into the 2008
edition of the Manual for Courts-Martial.

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 Louisianas death penalty
for child rape was constitutional.

The provision was the subject of a post over the weekend 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.

Mr. Sullivan was reading the Supreme Courts 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. "This happened in 2006."

He titled his blog post "The Supremes Dis the Military Justice System."

Jeffrey L. Fisher, a Stanford Law School professor who successfully
represented the defendant in the case, Patrick Kennedy, said that he and
others on the defense legal team, in researching how various jurisdictions
treat child rape, had actually looked into what military law said on the
subject. All they found was an old provision making rape a capital
offense; it predated the courts 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," Mr. Fisher said of the military
provision. "We figured if somebody in the government thought otherwise,
we'd hear about it."

The Justice Department declined to comment. "We do not comment on internal
deliberative matters," said Erik Ablin of the departments Office of Public
Affairs. The lawyers in the Jefferson Parish, La., district attorney's
office who handled the case for the state, in defense of Louisiana's child
rape law, were out of the office this week. Steve Wimberly, the lawyer in
the office designated to handle press inquiries about the Supreme Court
case, did not return a telephone call.

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. Although these petitions are filed rather often,
they are, not surprisingly, almost never granted.

R. Ted Cruz, who argued the case in support of Louisiana on behalf of a
coalition of 10 states, said in an interview that the chance that the
court would reconsider the decision was "extremely unlikely" even if
Louisiana brought the omission to the justices attention. "A member of the
majority would have to change his mind, but it's obvious that both sides
gave this case very careful consideration," Mr. Cruz said. The vote in the
case was 5 to 4.

At the time of the argument, Mr. Cruz was the Texas solicitor general. He
has since gone into private practice. In preparing for the case, he said,
the existence of the military provision simply "eluded everyone's
research."

No one in the military has been charged with a capital crime yet under the
revised provision. And despite the flurry of activity surrounding the
death penalty, the military has not in fact executed anyone for decades.
Its last execution took place on April 13, 1961, when Pvt. John A. Bennett
was put to death by hanging. His crime: the rape of an 11-year-old girl.

(source: New York Times)