Post by carolinem on Oct 3, 2008 4:12:05 GMT -5
5 Justices Say New Information Does Not Change Their Opinion on Use of Death Penalty
By Robert Barnes
Washington Post Staff Writer
Wednesday, October 1, 2008; 11:11 AM
The Supreme Court today declined to revisit its June decision that it is unconstitutional to impose the death penalty on child rapists, although two justices said they would have reopened the case and two others sharply criticized the majority.
The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the court was not made aware of what they consider a crucial element: that Congress in 2006 made child rape a capital offense under military law.
No one presented that fact -- it seems none of the parties knew at the time that it existed -- when the court said in June that there was no evidence of a national consensus in favor of putting child rapists to death. The court also found that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty.
Today, the same five justices said the opinion would be amended to reflect the existence of the military law, but that it did not bear upon their reasoning.
The military law that "retains the death penalty for rape of a child or an adult when committed by a member of the military 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," wrote Justice Anthony M. Kennedy, author of the original decision.
He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Without comment, Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the rehearing. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., said he respected the decision to deny a rehearing, but sharply criticized the majority.
"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 said. "The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death.
Scalia continued: "Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable. ' "
The court's decision last June was among the most controversial of the term. Both presidential candidates criticized it.
The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana is one of six states that allowed the death penalty for the crime.
By Robert Barnes
Washington Post Staff Writer
Wednesday, October 1, 2008; 11:11 AM
The Supreme Court today declined to revisit its June decision that it is unconstitutional to impose the death penalty on child rapists, although two justices said they would have reopened the case and two others sharply criticized the majority.
The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the court was not made aware of what they consider a crucial element: that Congress in 2006 made child rape a capital offense under military law.
No one presented that fact -- it seems none of the parties knew at the time that it existed -- when the court said in June that there was no evidence of a national consensus in favor of putting child rapists to death. The court also found that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty.
Today, the same five justices said the opinion would be amended to reflect the existence of the military law, but that it did not bear upon their reasoning.
The military law that "retains the death penalty for rape of a child or an adult when committed by a member of the military 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," wrote Justice Anthony M. Kennedy, author of the original decision.
He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Without comment, Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the rehearing. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., said he respected the decision to deny a rehearing, but sharply criticized the majority.
"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 said. "The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death.
Scalia continued: "Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable. ' "
The court's decision last June was among the most controversial of the term. Both presidential candidates criticized it.
The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana is one of six states that allowed the death penalty for the crime.