CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, October 1, 2008

High court rebuffs Louisiana in child rape case

WASHINGTON -- The Supreme Court declined Wednesday to revisit its recent decision outlawing executions for people convicted of raping children.

The unusual request, from Louisiana and the Bush administration, was based on the failure of anyone involved in the case to take into account a federal law from 2006 that authorizes the death penalty for members of the military who are convicted of child rape.

The state argued that the case should be reopened because Justice Anthony Kennedy relied in part on what he called a "national consensus" against executing convicted rapists. The court split 5-4 in the June 25 ruling.

The justices, by a 7-2 vote, issued an amended opinion Wednesday that adds a footnote concerning military law, but otherwise leaves the essence of the decision untouched.

The provision of military law setting out punishments for rapists "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," Kennedy wrote, joined by the four liberal justices who formed the majority in June.

Reopening the case would have taken five votes, including that of at least one justice who voted to ban the death penalty for rapists.

Justices Samuel Alito and Clarence Thomas voted to hear the case again.

Chief Justice John Roberts and Justice Antonin Scalia dissented from the original opinion, but voted against reopening the case.

The number of jurisdictions that allowed for capital punishment for rapists was irrelevant to the court's decision, Scalia said. Instead, the justices in the majority employed their independent judgment to say the Constitution forbids executions when the defendant does not kill the victim, he said. [Mark Godsey]

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