WASHINGTON — A divided Supreme Court refused Wednesday to reconsider its ruling barring the death penalty for raping a child, despite having overlooked a recent federal law that authorized capital punishment for members of the military who commit the same crime.
The five-justice majority brushed aside calls to reopen the issue. On June 25, they ruled the death penalty was cruel and unusual punishment for crimes that did not involve murder, and they overturned a Louisiana man's death sentence for raping his 8-year-old stepdaughter.
In declaring such laws unconstitutional, the court's opinion said there was a "national consensus" against the use of the death penalty for crimes such as rape. The justices said it was their "independent judgment" that the ultimate punishment should be reserved for people who killed.
Justice Anthony M. Kennedy wrote the opinion, and Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed with it.
But shortly after the decision was handed down, a military blog noted that Congress and the president had updated the Uniform Code of Military Justice in 2006, and had authorized the death sentence in the rape of a child. This made for an embarrassing oversight.
Neither the justices, their clerks nor the government's lawyers had taken note of the child-rape provision in the military code. Once alerted to it, state lawyers for Louisiana, joined by the Bush administration, filed motions urging the court to reopen the case and to revisit its ruling.
But none of the justices were inclined to change their minds. The justices in the majority issued a four-page opinion that rejected the request to reopen the case.
Instead, they said, a footnote would be added to the decision in the case of Patrick Kennedy vs. Louisiana. It takes note of the updated military code and ends by saying, "We find that the military penalty does not affect our reasoning or our conclusions."
Justice Kennedy pointed out that no member of the military was facing a death sentence for raping a child. "In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context," he said.
The four dissenters made clear again that they thought the decision was mistaken.
Justices Clarence Thomas and Samuel A. Alito Jr. voted to rehear the case. Justice Antonin Scalia and Chief Justice John G. Roberts Jr. said they continued to disagree with the court's ruling but saw no need to rehear the matter.
