Wednesday, July 2, 2008

"Factual Flaw" in Death Penalty Ruling

In Court Ruling on Executions, A Factual Flaw:

WASHINGTON — 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.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s 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.

As the article goes on to say, parties who feel the Supreme Court ruled incorrectly can file petitions to rehear the case, but they are seldom successful, and the "error" in this case would probably not have changed the outcome of the case, regardless.

While the UCMJ is technically "federal law", it's also a system of justice separate from the federal courts, which is why, perhaps, Kennedy wrote 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," and chose to ignore the 2006 Congressional act regarding the military death penalty.

As Doug Berman points out at Sentencing Law & Policy, the "broad irony" in this is noteworthy.
Usually, the story is that poor lawyers by the defense team in part explains why a defendant got sentenced to death. This time, it would seem, poor lawyers by the prosecutors in part may explain why a death sentence was found unconstitutional.
The Times piece by Linda Greenhouse also concludes with a kick in the seat bit of irony:
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.
Interesting too how this case has made its way into the '08 presidential race.

UPDATE: Justice Department Admits Error in Not Briefing Court. No word yet on whether this constitutes an automatic "F" for the activity.

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