Home -> Law Blog Directory -> Miscellaneous Blogs -> Begging the Question

Miscellaneous

: Begging the Question

Update on the Kennedy child rape case: my intervention post vindicated?

By "Milbarge" and "Fitz-Hume"

On Monday, the state of Louisiana filed a rehearing petition in the Supreme Court, asking the Court to reconsider its recent decision in Kennedy v. Louisiana, which outlawed the use of the death penalty for child rapists. SCOTUSBlog has coverage and a link to the petition, here's some coverage from How Appealing, here's a little from the Sex Crimes blog, and Prof. Berman here and here.

I discussed the possibilities of a rehearing petition last week in this post. As everyone expected, the petition focussed on the Court's (and the parties') error in failing to note that military law allows for capital punishment for child rapists. Since a major portion of the Court's opinion was based on what it saw as an evolving national consensus away from authorizing the death penalty in these cases, Louisiana's petition said the recently-enacted federal law undermined the Court's reasoning.

It's a fair argument to make, and the petition also makes another very interesting point. The other rationale for the Court's decision was the majority's independent judgment, apart from whatever the national consensus is, that the death penalty is simply a disproportionate punishment for child rape. As the state's petition asks, if the consensus argument is invalidated, is the proportionality holding enough to support the Court's decision? To be sure, it would be if the Court said so, but the petition points out that a straight proportionality holding, without consideration of national consensus, would be a sharp departure from recent Eighth Amendment jurisprudence. And it's probably too big a step to take without briefing and argument.

In the end, I doubt that will be enough to get the petition granted. But I took a special interest in one small part of the petition. In my post last week, I suggested that the Court's decision, apparently striking down a federal law as unconstitutional, gave the United States a right to intervene in the case pursuant to 28 U.S.C. sec. 2403. In the petition, Louisiana specifically cited section 2403 in noting that it served the petition on the Solicitor General, and asked the Court to request the views of the S.G.'s office. The petition didn't explicitly mention intervention, and ultimately, that's the S.G.'s call. And, certainly, I know I'm not the only person to think of this. But I do feel somewhat vindicated in thinking I wasn't completely crazy.

So, anyway, now the ball's in the Court's...uh, court. Stay tuned.

Full post as published by Begging the Question on July 22, 2008 (boomark / email).