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.

Acknowledging that the rape of a child is a most heinous crime, Justice Kennedy notes early that punishment is primarily about retribution and what this application of the death penalty says about our culture. (Please note that all quotes are pulled from the court decision.)

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint… We cannot dismiss the years of long anguish that must be endured by the victim of child rape… It does not follow, though, that capital punishment is a proportionate penalty for the crime.“ 

The decision also addresses claims by the law’s proponents that the death penalty somehow helps the victim’s healing process whereas NASW insists the process could increase the psychological distress experienced by victims. 

“It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by those who testify for the prosecution… Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. “

The NASW statement also references the well-established fact that the majority of childhood sexual assault is perpetrated by relatives or close family friends, making it far less likely that a child or her guardian will report the assault.  Hence, the abuse continues if not with the original victim, with other children.  Longterm abuse is documented as traumatizing to children and the adults they become; increasing the likelihood of teen pregnancy, drug abuse, mental health problems and other malidies.  The court agreed with the social workers, stating…

“With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse….one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member.”

Last but certainly not the least concern of advocates for children, is the fear that laws such as the one in Louisiana — and Texas — will remove a major deterrant against killing young victims of sexual assault.  To this Justice Kennedy states,

“Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.”

 In closing, Kennedy adds…

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.”

Two additional considerations are mentioned by the social workers but not the justices.  How the victim personally receives the message sent by capital punishment and the lost opportunity for resolution can both significantly hinder recovery.

The negative psychological impact of a law that tells a survivor that her experience is equal to that of a murder victim can in itself be disabling.  The underlying message that the child survivor receives is that she – as if murdered – is irreperable and might as well be dead. 

NASW also references the healing potential of future discussions between assailant and survivor.  A potential that might be lost if the assailant is put to death. 

I know the pain of realizing that the man who molested a naive teenager promising to never do it again, in fact did.  I also know the power, years later, in telling him of the anger and anguish; and hearing the reply “I’m so sorry.”   I thank the court for preserving this healing opportunity for other survivors and for seeing beyond conservative rhetoric toward a decision that is truly in the best interest of children.  

The American Civil Liberties Union (ACLU) ACLU of Louisiana and NAACP Legal Defense and Educational Fund also submitted an amicus brief regarding the disproportionate number of African American men who receive a death penalty sentence under existing laws. Worth reading and a mention here, the court however made no reference to these concerns in its decision. What impact the Kennedy v Louisiana decision might have on the Texas law — which has some restrictions not in the Louisiana version — is yet to be seen.

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 American Civil Liberties Union filed a federal lawsuit against the Texas Youth Commission on Thursday, accusing it of subjecting its female offenders to unwarranted solitary confinement, routine strip searches and brutal physical force.

According to the brief, incarcerated girls are “frequently subjected to punitive solitary confinement in oppressively cold, concrete and cinderblock cells containing nothing more than a metal slab intended for use as a bed, and in some cases, a metal toilet.”

The girls, many of whom suffered sexual abuse in the past, are also regularly strip-searched, the lawsuit alleges. Those who resist the searches are subjected to extreme force, including being pepper sprayed in the face or being bound in leather straps, the ACLU argued in its 19-page brief.

Constitutional rights

The ACLU filed its class-action lawsuit in the U.S. District Court of the Western District of Texas on behalf of five girls currently incarcerated at the Ron Jackson State Juvenile facility in Brownwood.The ACLU accused the state’s correctional agency, which last year was rocked by a massive abuse scandal, of violating the constitutional rights of its minor clients, all of whom suffered sexual, physical or emotional abuse prior to incarceration.

Dismayed TYC officials charged the ACLU with failing to recognize the progressive reforms the agency’s new leadership has instituted as part of the shake up that followed last year’s scandal.

“It would be nice to work with ACLU as partners,” said TYC spokesman Jim Hurley, noting TYC has made some dramatic changes in the last year. “TYC is not the same TYC it was a year ago.”

Certain conditions common

But Hurley acknowledged that notwithstanding certain reforms, many of the conditions cited in the brief could be found on any given day at TYC units throughout the state.”If kids are on a work detail in the cafeteria, before they go back to their dorm, I’m sure they’re (strip) searched, to make sure there is no contraband, no weapons,” Hurley said. “These are things that are done across the board.”

He said he believes the lawsuit could have been avoided with a simple phone call from ACLU attorneys. “It’s likely there are things in there that are already on the board ready to be revamped,” he added.

Hurley said addressing the special needs of the 150 or so female offenders had become one of the biggest priorities of the agency’s new conservator, Richard Nedelkoff. He indicated that the agency might take a hard look at the practice of strip-searching females.

An attorney for the ACLU said that while the agency had taken some important steps, patience is running low.

“In the interest of our clients, we just felt we couldn’t wait any longer,” said Lisa Graybill, legal director of the Texas ACLU.

The agency became the subject of national news reports last year amid allegations that top officials turned a blind eye to evidence that youth had been or were being sexually and or physically abused by staff at a number of facilities around the state.

Source: Sandberg, Lisa. ACLU Sues State Juvenile Prison System. Houston Chronicle, June 12, 2008.