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Supreme Court Asked to Rehear Louisiana Execution Plea

By: Gerri L. Elder

When the U.S. Supreme Court recently issued a decision to prevent the execution of convicted child rapists, many people were outraged. Among the people who had negative reactions to the ruling were Democratic presidential candidate Barack Obama and Republican presidential candidate John McCain.

The Legal Times reported on September 25 that the criticism of this Supreme Court decision by both McCain and Obama was cited in a rehearing request filed by the state of Louisiana in the case of Kennedy v. Louisiana. The Supreme Court justices had decided in this case that it is unconstitutional to execute people who are convicted of child rape when the victim survives.

This controversial Supreme Court decision was handed down on June 25, 2008. Soon after the decision, it was exposed by a military law blogger that the justices and all of the parties involved in the case failed to mention that Congress had recently passed legislation that mandates that the death penalty be imposed for the crime of child rape under the Uniform Code of Military Justice.

When this material omission was brought to light, the state of Louisiana argued that it could impact the justices’ assessment of the national consensus on the issue. The state has asked the court to take the extremely rare action of rehearing the case to consider this omitted information in making their decision.

A supplemental brief was filed with the Supreme Court on September 24. The state of Louisiana argues in the brief that military law is in fact American law and should not be ignored in this case, especially since it represents the will of Congress when the law was passed.

Lawyers for Louisiana argue that “The Constitution’s commitment to democratic solutions and our federal system favors rehearing.” They also add in a footnote that the public’s reaction to the June 25 decision showed that “even a short period of time can shed light on the national consensus.”

Included in the brief as evidence were statements made by both McCain and Obama after the decision.

McCain called the ruling an “assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime.”

Obama, who is not a champion of the death penalty, commented that child rape fits his criteria for when capital punishment is called for “in very narrow circumstances for the most egregious of crimes.”

The Court was expected to take up the rehearing request at its first fall conference on September 29, and a decision on the rehearing request could be right around the corner.


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