An Act of Congress that only a blogger could see?!?

A blogger just pointed out a factual error in a Supreme Court decision, Kennedy v. Louisiana..  The Supreme Court recently said that it would be cruel and unusual for Louisiana to execute child rapists.  The reason?  “Evolving standards of decency” determine what is cruel and unusual, so the Supreme Court looks to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.”  This tallying of jurisdictions for and against a  punishment is known as the “consensus” analysis.  Granted, the consensus analysis isn’t the only factor (if it were, the Supreme Court would be a Romanoff Czar worthy ostentatiously glorified Faberge Egg of an adding machine).  The Supreme Court also lists its “own independent judgment” as a factor.

But, let’s be honest, Kennedy was much more of a consensus case than an “independent judgment” case.  For example, here are some excerpts from the opinion:

In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult.

Between 1930 and 1964, 455 people were executed for those crimes.

To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964.

Then came Furman in 1972, and a period of wholesale re-analysis of the death penalty.  As to the post-Furman  era …

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.

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. 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. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

See what I mean?  Kennedy is a “consensus” case.  The problem? 

The Supreme Court got the tally wrong — there’s an Act of Congress authorizing the death penalty for child rape.  It’s in a 2006 revision to the Code of Military Justice.  The Justices didn’t catch it.  Their briefing clerks didn’t catch it.  None of the attorneys filing briefs with the Supreme Court caught it.  (Maybe this is a sign we’ve got too many laws).

Dwight Sullivan, former top-level JAG sort who has a blog on military justice caught it, as he was reading the decision.  The the NY Times coverage is here.  As Sullivan said, the military justice system remains “the Rodney Dangerfield of legal systems.”  Which is odd, given all of the Gitmo/non-combatant detainee cases working their way through the judicial system.

Will the Supreme Court revisit Kennedy because of this?  Highly unlikely.  So we’re left with a Supreme Court case that’s the equivalent of Super Bowl XIII.  For those of you who aren’t Cowboys fans, it boils down to this: There were glaring late-game officiating errors that hurt the ‘Boy’s chances of winning.  In fact, the Steelers won.  They probably would have won anyway.  Probably. 

Questionable outcomes are great for sports radio.  Horrible for the judicial system.

Update: Don Cruse over at the Supreme Court of Texas Blog has an excellent post on this topic.  Don has a link to the Solicitor General’s statement accepting some responsibility for this oversight.  What’s more, Don did the legwork to discover that the Senate voted 98-0 in favor of the 2006 bill.  So, yes, Don thinks this is a big-deal.

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