Supreme Court won't reconsider death penalty for child rape
The justices held earlier that capital punishment is cruel and unusual in cases not involving murder. They say military law permitting execution does not change their thinking.
WASHINGTON -- A divided Supreme Court refused today to reconsider its ruling barring the death penalty for the crime of raping a child, despite a recent federal law that authorized capital punishment for members of the military who rape a child.
The five-justice majority brushed aside calls to reopen the issue. In June, they ruled that the death penalty is cruel and unusual punishment for crimes that do not involve murder, and they overturned a Louisiana man's death sentence for raping his 8-year-old stepdaughter.
No one has been executed for rape in the United States since 1964, and the high court had ruled in 1977 that capital punishment for rape was unconstitutional.
But that decision involved the rape of an adult woman, and several states, including Louisiana, had enacted new death penalty laws in recent years that authorized the death penalty for the raping of a child.
In striking down those laws, the court's opinion by Justice Anthony M. Kennedy said there was a "national consensus" against the use of the death penalty for crimes such as rape. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed.
But shortly after the decision was handed down, a military blog noted that Congress and the President had updated the Code of Military Justice in 2006 and had authorized a death sentence for the rape of a child. This was not an entirely new development, since military law since 1863 had authorized capital punishment for rape.
Nonetheless, the court's opinion had failed to note this fact, and lawyers for Louisiana and the Bush administration urged the justices to reopen the case and to revisit their ruling.
The court issued a brief opinion today refusing that request and stating that a new footnote will 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."
Kennedy pointed out that no member of the military is 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 added.
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 continue to disagree with the court's ruling, but they saw no need to rehear the matter.
"I am voting against the petition for rehearing because 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 wrote.
Separately, the court said it will hear an environmental cleanup case from near Bakersfield, Calif., to decide who must pay the costs.
Earlier this year, the U.S. 9th Circuit Court of Appeals said companies that contributed to the pollution are responsible for paying the entire cost, even if they were only partly responsible for it.
The court will hear an appeal from Burlington Northern Railroad and Shell Oil, both of which say they did not cause the local contamination and they should not bear the full cost of the cleanup.
David.savage@latimes.com
