Thursday, October 2, 2008

No Reconsideration for Child Rapists

Court Won't Reconsider Ban on Execution for Child Rape:

The Supreme Court yesterday declined to revisit its June decision that imposing the death penalty on child-rapists is unconstitutional, although two justices said they would have reopened the case and two others sharply criticized the majority.

The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the justices had not been presented with what the state and federal government considered an important fact: that Congress in 2006 made child rape a capital offense under military law.

Today, the same five justices said that the opinion would be amended to reflect the existence of the military law but that it did not bear upon their reasoning.

The military law "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," wrote Justice Anthony M. Kennedy, author of the original decision.

He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Without comment, Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the rehearing. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., said he thought there was no point in rehearing the case, because the majority would reach the same -- and in his mind, misguided -- conclusion.

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case," Scalia said. "The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the Eighth Amendment's prohibition of cruel and unusual punishments renders capital punishment unacceptable for the crime of rape.

Scalia continued: "Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' " The June decision was among the court's most controversial of the term. Both presidential candidates criticized it.

I don't think anyone really expected the majority to reconsider in light of the "missed" 2006 statute. The dissent pretty much sums up the missing cite with "irrelevant."

It also guarantees neither this case nor the death penalty in general is likely to affect the presidential election, since both candidates and their running mates are for the death penalty and against this ruling.

More on this case here and here.

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