Justices uphold death penalty ban in rape of a child

Times Staff Writer

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.

“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.

No one has been executed for rape in the U.S. since 1964, and the high court ruled in 1977 that capital punishment for rape was unconstitutional.

But that decision involved the rape of an adult woman. In recent years, six states, including Louisiana, enacted death penalty laws that authorized capital punishment in the rape of a child. Kennedy, the Louisiana man, was the first person sentenced to die under the state’s new law, and the court took up his appeal.

Separately, the court said it would hear an environmental cleanup case from Arvin, Calif., near Bakersfield.

The federal government paid $7.8 million and California paid $401,000 to clean up contamination from an abandoned storage facility for farm chemicals. A federal cleanup law calls for those costs to be paid by the polluters. But the law is not clear about how the costs are to be divided up.

“The issue involves the proper allocation of hundreds of billions of dollars of liability at thousands of cleanup sites nationwide,” lawyers for Burlington Northern Railroad told the court.

The railway said the owners of the chemical storage company leased a small parcel of its land. Burlington questioned why it should be forced to pay any of the cleanup costs. Similarly, Shell Oil Co., another defendant, said it merely shipped chemicals to the facility.

But in March, the U.S. 9th Circuit Court of Appeals ruled that because Burlington Northern and Shell were responsible in part for the pollution, they could be held liable for the full cost of the cleanup.

Burlington Northern called that a “radical change in the law,” and the court voted to hear its appeal, probably in January.