In Weighing Death Penalty, a Flaw in Fact

New York Times ^ | July 2, 2008 | Linda Greenhouse

[reaganaut1]

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.

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.

[reaganaut1]

There was no "national consensus" against the death penalty for child rape. In any case, Supreme Court justices are not supposed to be pollsters or legislators but impartial interpreters of the Constitution.

[Slapshot68]

I’m shocked this came from The NY Times.

[muawiyah]

The folks at the NYT have a vital interest in “child rape” ~

[SumProVita]

“evolving standards of decency”

Pure relativism. By standards of decency, Kennedy refers to moral standards and these do NOT evolve. They are based on unchanging truth.

[Slapshot68]

That’s liberalism for you...they believe morality should change with the times. Which simply means they promote immorality.

[the Real fifi]

This is highly embarrassing for Justice Kennedy and undercuts substantially the validity of the opinion which is based on a gross error of fact.

[Sacajaweau]

Our D.A. goes for life without parole with no appeal. Saves us a lot of court money and time in the system and lets him got on to the next case.

The appeal process is sooo long and convoluted, the death penalty in most cases becomes a farce.

[yefragetuwrabrumuy]

Kennedy seems to suffer some confusion about the role of the SCOTUS, and what he has been hired to do:

Before he graduated from college, Justice Kennedy spent several months studying at the London School of Economics, where he was struck by the range of student opinion and the vehemence of political debate.

“At the political union, you had to sit in the room according to your place on the ideological spectrum, and, to give you an idea of what it was like, the Communists—the Communists!—were in the middle,” Kennedy recalled recently. “It was a different world, and I loved it.”

[NinoFan]

Hell hath no fury like a Greenhouse scorned.