However, since the ruling, a legal blogger has pointed out that the federal government passed a law in 2006 allowing for this use of the death penalty in the military. Amazingly, the plaintiff, the defendant, the Court Majority and the Dissent all failed to mention this law during the arguments and the decision of the case. As a result, the state of Louisiana is requesting that the Court reconsider its ruling since the discovery of a federal law allowing this use of the death penalty may undermine the Court’s argument of a national consensus against it. However, Louisiana recognized that even if the Court agrees to reconsider its ruling, the ruling may still be upheld due to the Court’s independent judgment against this use of the death penalty.

Please click here to see the Petition for Rehearing.

From the SCOTUSblog:

The state of Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape. The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

The Court’s decision had two parts: a survey of laws and official actions, leading the Court to conclude that there was a consensus against the death penalty for child rape, and a separate expression of the Court’s own “independent judgment” about whether capital punishment should ever be available for a crime that did not result in the victim’s death — a point on which the Court said no.

In the first part, the Court noted the absence of any federal law imposing a death penalty for child rape. After the decision was issued, a military law expert noted that omission. The expert noted a 2006 law by Congress which, the expert said, authorized the death penalty for rape of a child under military law — the law that prescribes crimes and penalties for members of the military services.

A spate of publicity, beginning in The New York Times, led the U.S. Solicitor General’s office to notify the Court of the omission, and to offer to comment on it, if asked. The government was not a party in the case, but it said it should have noticed the fact of the federal law’s existence and told the Court.

Monday was the deadline for Louisiana to seek rehearing of the case. It did so in a petition signed by counsel of record, Georgetown law professor Neal K. Katyal.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid.

The rehearing plea said that the omission would bear not only on the Court’s discussion of a “national consensus” against the death penalty for child rape, but also would have an effect on the part of the ruling in which the Justices relied on “independent judgment.”

Louisiana conceded that the Court might reach the same decision again if it reheard the case, but said rehearing was warranted because that “protects the public’s trust that the Court has before it all relevant information before reaching a final decision,” it “safeguards the perception of fairness,” and it “ensures that the Court’s final decision accurately reflects the state of facts and the law.”

If the Court believes that its decision could stand alone on the exercise of “independent judgment,” that should still lead to rehearing, because, the petition argued, that would make the “national consensus” calculus less important in future cases on applying the death penalty.

A denial of rehearing, the petition argued, would sow confusion about which side of the Court’s calculus weighed the most.

As is too often the case, the analysis of the opinion in the media distorts what was actually decided or even what was at stake. Supreme Court opinions are often treated as being about (1) what the policy should be, rather than (2) who should set that policy. We shouldn’t come down on commentators too hard for conflating these issues, however, as even the Justices tend to get this confused from time to time. The fundamental disagreement in this 5-4 decision is that five Justices thought the case primarily about number (1) - categorically prohibiting death penalty in child rape cases - and the other four thought it primarily about number (2) - allowing state legislatures to set punishments within constitutional bounds.

Ever Evolving Standards of Decency

Much of the majority’s opinion is spent justifying its determination of the ‘evolving standards of decency’ by reference to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” We don’t have to look very far into our history books to know that our sense of decency has indeed evolved -

Two Centuries’ Growth of American Law, 1701-1901 By Yale Law School

The logic, however, of a court striking down a law passed by a democratically elected legislature based on a perceived consensus of democratically elected legislatures, seems bafflingly circular. What more appropriate measure of society’s standards than the collective statements of its duly elected representatives? That the majority finds it necessary to usurp that position for the sake of uniformity displays a preference for setting rules rather than setting boundaries. But here I’m just poorly paraphrasing Justice Alito’s dissent, who is left surmising, as am I, at the true policy behind the court’s ruling (see II B for his best guess).

Whose best interests?

It is, of course, entirely possible for statutes to be both Constitutional and terrible laws that hurt the people it’s designed to protect and there is good reason to believe that imposing the death penalty in cases of child rape imposes costs as well as confers benefits on child victims. In no other area of the law are unintended consequences so prevalent or so devastating and in its affect on children. Here are a few unintended consequences that imposing the death penalty in child rape cases might have created -

1. Incentive to kill ones victims - the death penalty’s power of deterrence, though hotly debated, is the most obvious benefit to the victim. The specter of death, we believe, if proportional, encourages criminals to limit the damage they cause. If a child rapist is subject to death for the rape, there is no further incentive not to kill his young victim in order to cover up evidence of the crime.
2. Discouraging Reporting of Child Rape - children are most frequently abused sexually by family members. Child victims may choose not to report rape because they fear that the rapist will be put to death. The tremendous guilt felt by victims remains for me the most stunning and tragic aspect of childhood sexual assault and may be magnified when the death penalty is imposed.
3. Discouraging Cooperation in Prosecution by Child Victim - the Sixth Amendment’s confrontation clause requires the defendant have the right to confront and cross-examine witnesses. This can exacerbate an already bad situation for child victims who must often relive the trauma of the event in full court and in front of their attacker. The delicate balance walked by courts in protecting constitutional rights of defendants and avoiding any further harm to the victim/witness is further stressed in capital trials.
4. Denying Opportunity for Closure or Explanation - an unexpected argument, raised in my colleague’s post here is the common desire among victims for explanation, apology, or other mechanisms of closure that is potentially lost if the assailant is put to death.

For policy makers the balancing of consequences and benefits is an uneasy and inexact science, but a task more appropriately performs by state legislatures. Most, I suspect, would find the cost of imposing the death penalty outweighs its benefits or that it would be imposed in a manner that, like Texas’ Penal Code § 12.42(c)(3) was reserved for repeat or habitual offenders.

In my opinion, this will never, fortunately or unfortunately, be the biggest problem facing children in our nation. Far more children will lose their lives to disease, inadequate nutrition and health care and outright neglect. Others will soon be caught in the very same legal system that here debates the best method of their protection. However, we should use the Kennedy case as a reminder that legal issues involving children are seldom as clear-cut as they seem and only a diligent and holistic approach to children’s rights can truly reflect their best interests.

Landmark Cases in the Supreme Court’s Death Penalty Jurisprudence

• Kennedy v. Louisiana, 554 U. S. ____ (2008) (holding that the Eighth Amendment bars states from imposing the death penalty for the rape of a child not resulting in death)
• Roper v. Simmons, 543 U. S. 551 (2005) (execution of juveniles violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime)
• Atkins v. Virginia, 536 U. S. 304 (2002) (the execution of mentally retarded persons “cruel and unusual punishment” prohibited by the Eighth Amendment)
• Enmund v. Florida, 458 U. S. 782 (1982) (capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place violates Eighth Amendment)
• Furman v. Georgia, 408 U. S. 238, 382 (1972) (held that the death penalty could not be administered in a capricious or discriminatory manner)
• Coker v. Georgia, 433 U.S.584 (1977) (held death penalty disproportionate to the rape of an adult woman and did not result, or was not intended to result, in the victim’s death)
• Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), (noting that the Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”)
• Weems v. United States, 217 U. S. 349, 367 (1910) (the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.”)

The Court’s Opinion found at: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

New York Times Article on the case: http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html?_r=1&hp&oref=slogin

The Children’s Defense Fund’s 2008 report Protect Children, Not Guns tracks the first increase in the number of gun deaths among children and teens since 1994. Based on the most recent data from the US Centers for Disease Control and Prevention, the report released today shows that 3,006 children and teens died in 2005 from firearms after more than a decade of decline. Trenton , N.J. Mayor Douglas H. Palmer, President of the U.S. Conference of Mayors; Washington, D.C. Mayor Adrian Fenty; and the Brady Campaign to Prevent Gun Violence join CDF in calling for reasonable gun restrictions that protect children and communities.

“Imagine a tragedy like the Virginia Tech shooting occurring every four days, or a Northern Illinois shooting happening every 15 hours,” said CDF President Marian Wright Edelman. “As implausible as it might seem, this is our reality: guns kill 8 children and teens every day in America. In 2005, guns killed more preschoolers than law enforcement officers in the line of duty. It is time to stop this senseless dying among children and teens. Our children will be less vulnerable and our communities safer if guns are less readily available. It’s simply time to reject this culture of violence.”

This news comes in advance of the U.S. Supreme Court decision on D.C. v. Heller—commonly known as the D.C. Handgun Ban case—in which the Court will address the Second Amendment for the first time in over 70 years. The Court’s decision, expected this month, will likely have a significant impact on how effectively cities and communities can regulate firearms.

“This report only reinforces what mayors across the country have been witnessing for years — gun violence out of control in our nation’s cities,” said Mayor Palmer. “It is a national crisis that a child or teen is killed by guns every 3 hours somewhere in America. But this problem IS solvable if everyone plays a role. We must support reasonable restrictions on guns to limit the number of illegal guns in our communities and to make certain they don’t fall into the wrong hands. Our cities—and our children—cannot wait any longer.”

“I stand with the Children’s Defense Fund in supporting our gun control laws and raising awareness of the silent epidemic of gun violence affecting so many children and families across the country,” said Mayor Fenty. “The District’s handgun laws have saved countless lives. We need to protect our residents, particularly our most vulnerable residents: our children.”

“The Children’s Defense Fund’s gun report demonstrates the devastating impact gun violence has on our nation, particularly our nation’s children,” said Paul Helmke, President of the Brady Campaign to Prevent Gun Violence. “Guns fall too easily into the wrong hands because, in most states, there are few or no laws to prevent gun violence. And with the pending Supreme Court decision, the essential protections for our nation’s children and families are in danger of being undermined. We must work together to support and pass gun legislation that protects those we’ve promised to keep safe.”

Protect Children, Not Guns documents the high toll of gun violence on our society:

• The number of children and teens killed by guns in 2005 would fill 120 public school classrooms of 25 students each;
• A Black male has a 1 in 72 chance of being killed by a firearm by his 30th birthday while a While male has a 1 in 344 chance;
• California led with 474 gun deaths among children and teens in 2005; Texas, was second with 264, followed by Florida with 148, Pennsylvania with 138 and Illinois with 130.
• Since 1979, firearms killed 104,419 children and teens.

The report recommends what individuals, communities and policymakers can do to reverse the increase in gun violence. It calls on Congress to pass common sense gun safety measures that will help decrease the availability of guns and ensure they don’t fall into the wrong hands; communities to organize nonviolent conflict resolution support groups, and families to remove guns from their homes as the presence of firearms increases the risk of homicide and suicide in the home.

Source: Shelleby, Ed. New Children’s Defense Fund Report Shows Children and Teen Firearm Deaths Increase for First Time Since 1994. June, 9, 2008.

In recent years, the Children’s Defense Fund has received horrifying reports of the physical and sexual abuse of children and teens in juvenile correctional facilities. There are accounts of children being forced to eat their own vomit, of children being left naked for weeks in small isolation cells with nothing but a hole in the floor for a toilet, and of children being hog-tied–placed face down on the floor with their shackled hands and feet drawn together–for 12 or 13 hours. We have learned of many disturbing accounts of boys and girls being sexually abused and of some dying while in the custody of the state juvenile justice system.

This nationwide abuse of incarcerated youths is a moral outrage. One need only look to the recent scandals plaguing the Texas Youth Commission and Mississippi’s Columbia Training School for evidence of how vulnerable incarcerated youths are to being abused. A recent Associated Press survey found more than 13,000 claims of abuse were identified in juvenile correction centers around the country from 2004 through 2007. Many experts feel that this number represents significant underreporting. In July 2005, the U.S. Department of Justice released a report declaring that state-operated juvenile facilities had the highest rates of alleged staff sexual misconduct when compared to state and federal prisons. Youths detained in adult jails are also at high risk of becoming victims of physical and sexual assault.

Despite these disturbing facts, federal law places a significant burden on the thousands of incarcerated children and youths that face abusive conditions of confinement. In 1996, Congress passed the Prison Litigation Reform Act (PLRA) to limit the number of “frivolous” prisoner lawsuits. The stated goal of the measure was to “help restore balance to prison conditions litigation and ensure that Federal Court Orders are limited to remedying actual violations of prisoners’ rights.” One of the PLRA’s provisions prohibits prisoners from filing lawsuits for mental or emotional injury without demonstrating a “physical injury.” And prisoners must exhaust all administrative remedies before they can file a suit in federal court. The law also put restrictions on attorneys’ fees in prisoner cases. The effect of these provisions has been to reduce the number of prisoner abuse complaints that reach federal courts. The “success” of the PLRA, however, comes with problems as civil liberties and youth advocates charge that the act’s requirements pose insurmountable barriers to adults and youths filing legitimate claims in federal court.

There are good reasons why children and teens should be excluded from the requirements of the PLRA. First and foremost, children do not file frivolous lawsuits. Many incarcerated children and teens lack adequate legal representation to assist them if they allege abuse or violation of other rights. Children and teens are far less capable than adults of following the difficult and often convoluted administrative processes they must adhere to in order to comply with the PLRA. Most importantly, it is unacceptable for children and youths to be forced to report abuse to either their abusers or subordinates of their abusers.

The law’s requirement that they exhaust all administrative remedies could mean a youth detainee would have to take her complaint to the prison guard who rapes her in hopes that the head of the detention center, who winks at the guard’s behavior, does something about it. Many youths fear or actually risk retaliation if they file an administrative complaint. The fact that most children and teens cannot overcome these hurdles effectively insulates correctional facilities from accountability for deplorable detention and correctional facility conditions.

On April 22, 2008, I submitted testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security urging the panel to take the necessary steps to exclude children and youths from the requirements of the PLRA. Passage of the Prison Abuse Remedies Act of 2007 (H.R. 4109) would do that and eliminate some of the barriers that prevent young people from accessing our federal courts for relief if they are abused behind bars.

We’ve all seen movies that depict the tenacious and savvy adult prison inmate who spends hours in the penitentiary library poring over law books. He constantly sends communications to the warden, penal officials and courts. It is unreasonable for our nation to expect the same from incarcerated children and teens. We must not look away while children and teens are abused. Allowing this abuse to persist unchecked contradicts the rehabilitative mandate set out for the juvenile justice system. It is impossible to expect incarcerated children and teens to be rehabilitated and become successful adults in these kinds of conditions. Our nation’s juvenile detention system is in desperate need of massive reform. Passing the Prison Abuse Remedies Act of 2007 would be a good start.

Source: Edelman, Marion Wright, “Congress Must Act to Protect Young Detainees from Abuse” (May 19, 2008). Huffington Post. Available at: http://www.huffingtonpost.com/marian-wright-edelman/congress-must-act-to-prot_b_102430.html

Another notable aspect of the case, is the participation of a group of University of Texas law students, who filed the petition, along with other local lawyers, as part of that school’s Supreme Court clinic.

There’s a discussion started here on the Pittman v. South Carolina Topic on our Discussion Forum.

• University of Texas Law School: Law School Clinic Asks U.S. Supreme Court To Hear Major Juvenile Justice Case
• University of Texas Law School: Download the U.S. Supreme Court Certiorari Petition and appendix documents
• SCOTUSBlog: Long sentence for juvenile challenged
• Controversy Over Giving Teen Killers the Possibility of Parole?
• NY Times: Lifers as Teenagers, Now Seeking Second Chance
• Sentencing Law & Policy Blog: Evolving images of a killer and the evolving Eighth Amendment
• National Law Journal: Law school clinic asks high court to hear case of juvenile who killed at age 12