The Supreme Court Makes a Mistake?

Undoubtedly, no matter what your political persuasion, you frequently disagree with Supreme Court decisions. However, last week the Supreme Court’s decision on the punishment for child rape contained a surprising factual error.

Last Week, Supreme Court announced its controversial decision of Kennedy v. Louisiana which held that the death penalty is not a constitutional penalty the rape of a child. In this decision, the Court surveyed the law in the United States governing the maximum permissible sentence for such a crime. Both the majority and the dissent overlooked a congressional statute right on point.

When Justice Kennedy, writing for the majority, held that capital punishment for child rape was against the “evolving standards of decency” by which the court judges how the death penalty is applied, he based that holding, at least in part, on the fact that a child rapist could face death 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.

The Court observed:

By contrast, 44 States have not made child rape a capital offense. 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 U. S.U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death. Kennedy, slip op. at 12-13. C.).

The majority continued:

Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Id. at 15.

Writing for the four dissenters, Justice Alito countered:

The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but 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." Kennedy, dissent slip op. at 13 (Alito, J., dissenting)

However, in 2006, Congress enacted a law permitting the death penalty for the rape of a child. Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

To cut through the legal jargon, in 2006 Congress passed, and the President signed, a law pertaining to military tribunals which permits the death penalty for child rape. This is a congressional statute expressly authorizing the death penalty for the rape of a child, which, apparently, everyone failed to notice.

While this finding does not change the outcome of the case, and, probably, would not have changed a single vote, one would think that with all of the lawyers, clerks, and justices that worked on this case, they would have found that statute.

Perhaps our “standards of decency” have not evolved as much as Kennedy would like to believe.

The New York Times reports on the story HERE.