Last week, the New York Times revealed that a 2006 federal law declaring child rape a capital offense for the military was not included in the Justice Department’s briefing to the Supreme Court for the case Kennedy v. Louisiana. The Court’s 5-4 decision, declaring the death penalty unconstitutional and disproportionate for perpetrators of child rape, was largely based on the contention that only 6 states considered child rape a capital offense, indicating that it is not in keeping with “evolving standards of decency.” The federal law, however, paints a different picture, and knowledge of its existence may have swayed the Court’s decision. The Court has made decisions on the constitutionality of the death penalty in the military in the past, and it is unclear whether there will now be a challenge to the 2006 law.
The Justice Department did take responsibility for missing the law in its briefing, immediately forwarding on the information to the Court after learning of the omission from the New York Times (which in turn was alerted by a military law blogger). The case cannot be retried unless the parties involved choose to challenge the decision, and the state of Louisiana has announced that it will consider this course of action.
Click to view the Supreme Court decision: Kennedy v. Louisiana (Fastcase subscribers only)
Source: The New York Times