Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child. Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.
The brief also argued that the Kennedy opinion did not go so far as to strike down the death penalty for child rape if that crime occurs in the military context. Should there be such a prosecution in the military in the future, the brief said, “this Court will have ample opportunity to consider…whether special military requirements entitle the military to more leeway than states under the Eighth Amendment.”
I obviously agree and think the brief is well-argued. I would say more, but I'm swamped right now. Of interest to blog readers, Crime and Consequences (specifically Kent Scheidegger) is cited by the brief. I'm guessing this will be one of the few (or only) time(s) that Kent is cited by a defendant in a death penalty case. Either way, kudos to Kent and C&C. As for the S.G. brief, this is from SCOTUSBlog:
Meanwhile, the Justice Department in its own new filing urged the Court to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. In a brief invited by the Court, Acting Solicitor General Gregory G. Garre said that the Court should not nullify that penalty in the face of support for it by Congress and the President. “The Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate,” Garre contended.
The S.G. brief really adds nothing new beyond its last brief. The S.G. is still relying heavily on Wilkerson v. Utah to establish that the Court cares about military policy in determining what is "cruel and unusual" punishment.
I have more to say about each of the briefs, but you will have read my thoughts in my new article which I am happy to say will be forthcoming in the Northwestern University Law Review Colloquy. The Colloquy has promised me publication by the end of the month which is fantastic and really shows the potential of online law reviews.