Wrong on the law, and as it turns out, wrong on the facts. Although in fairness, everyone else involved in the case was, too.
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 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…
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 Louisiana’s death penalty for child rape was constitutional.
Via Patterico, here’s the post at CAAFlog that caught the entire justice system napping. Read down into the Times piece and you’ll find an amusing bit near the end about whether this means a petition asking the Court to reconsider its decision is in the offing. Answer: Of course not. Remember, the point of the “evolving standards of decency” test for cruel and unusual punishment is that it’s almost entirely arbitrary. The Court likes it because it lets them do whatever they want to do, so long as they can patch together a few bits and pieces of “evidence” demonstrating a “national consensus.” Does a law passed just two years ago by our national legislature have something to tell us, perhaps, about which way the national consensus is evolving? Not really. Why? Because it just doesn’t, that’s why. The cleverest way to expose what a sham this sort of conclusion-to-premise reasoning is would be for a few red states to pass laws extending the death penalty to child rape notwithstanding the Court’s decision, then argue on appeal when they’re sued that this constitutes fresh new evidence that standards of decency are still “evolving.” How many states do you think it would take before Kennedy et al. decided that a new national consensus had been reached? 49, or all 50?
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