Ace of Spades HQ

July 02, 2008

Justice Kennedy, Wrong on Facts, Wrong on Law
— Gabriel Malor

Last week I told you about Justice Stevens' factual mistakes in Heller and Hamdan. This week Justice Kennedy is under the microscope in Kennedy v. Louisiana, thanks to the military justice blog CAAFlog.

Dwight Sullivan at CAAFlog noticed that Justice Kennedy flubbed the facts about federal capital punishment. Kennedy wrote that the death penalty for child rapists was only available in six state jurisdictions and not available under federal law. That's not true, and in fact such punishment is a recent occurrence, driving another nail into Kennedy's false claims that the U.S. is trending away from the death penalty for child rapists.

But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.
Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

Sullivan sounds a little peeved that nether side made mention of the law. When asked, defendant's counsel said "We just assumed it was defunct...We figured if somebody in the government thought otherwise, wed hear about it. Sullivan's discovery made it in the N.Y. Times today.

Kennedy's legal problem is that he was more than willing to adopt a squishy standard like "evolving standards of decency." He just refused to admit that the evolution of law in the U.S. is towards executing child rapists.

Posted by: Gabriel Malor at 06:47 AM | Comments (28)
Post contains 319 words, total size 2 kb.

1 Don't ass u me!

Posted by: Rocks at July 02, 2008 11:06 AM (Q1lie)

2 How common is it for Justices to get the facts wrong? The only person I ever hear it about is Kennedy. Does some court watchdog group track this sort of thing?

Posted by: Weisenheimer Brainstorm at July 02, 2008 11:13 AM (w0yN2)

Scalia, Roberts, Alito, and Thomas should take him out back and have a few words with Kennedy.

Posted by: EC at July 02, 2008 11:13 AM (mAhn3)

There's a big part of me that wishes Lousiana would say "Fuck you!" to the Supreme Court and execute the bastard anyway.

If not by lethal injection then by giving his new cellmate Bubba a shiv and a transfer to private quarters where he was served steak and hookers every day.

Posted by: Andy at July 02, 2008 11:16 AM (C3mTI)

5 Child rapists do face the death penalty. It's called being put in the general population.

An acquaintance of mine related a story of working with a molester who'd gotten a job where she worked. Summary version: after spending a couple of years in the pen, the offender understood why what he'd done was particularly vile.

Posted by: I R A Darth Aggie at July 02, 2008 11:22 AM (1hM1d)

6 Kennedy and Stevens need to invest some higher draft picks in their clerks.

Posted by: Circa (Insert Year Here) at July 02, 2008 11:48 AM (B+qrE)

With all the Supreme Court rulings being released, someone should probably make sure Gabe is staying hydrated... I would just go ahead and burn the bunk.

Posted by: Terry at July 02, 2008 01:51 PM (nyxv/)

Here's what most commenters are missing in the debate over this issue:

The reasoning the court used to arrive at the conclusion that the death penalty for child rapists is not "usual" is circular, and thus, flawed.

The court ruled that few jurisdictions impose the death penalty for child rape. Therefore, ipso facto, it must be unconstitutionally unusual.

Follow that train of thought for a moment.

How could it ever become "usual" now that the court has outlawed it? The trendline was zero jurisdictions imposing the penalty, upwards to six. That's an upward trend that was stopped by the court.

Now, it will never become "usual" since it's illegal to impose that penalty - unless a large majority of states impose it simultaneously in defiance of the court.

Posted by: wherespock at July 02, 2008 02:13 PM (Ncq2X)

9 The whole argument is spurious. There were much more widespread laws allowing the death-penalty for rape - of anyone. When the death-penalty for adult rapists was wiped out - which was very recently - it also wiped out the umbrella under which child rapists had previously been charged. So the six state laws - and the military code- were responses to the obliteration of something that had been there previously. The other states, basically, just hadn't acted fast enough.

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