I am surprised I didn’t see more blogs lit up over this today (Allahpundit over at Hot Air  did hit on it,  though).
That is, Anthony Kennedy, who wrote the majority opinion in Kennedy v. Louisiana, was wrong. If you recall, Kennedy wrote in his opinion (discussed here last week ) that
Thirty-seven jurisdictionsâ€”36 States plus the Federal Governmentâ€” currently impose capital punishment, but only six States authorize it for child rape.
Kennedy then used this fact to establish that Congress’ lack of action to enact capital punishment for child rape reflected the country’s growing desire to treat child rapists more kindly. I’m still gagging over that one.
In Wednesday’s New York Times, we find that Kennedy, along with both legal teams on the case, missed some critical information. Federal Military code does cover child rape as a capital crime:
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
The blog referenced here is run by Colonel Dwight Sullivan of the Marine Corps Reserve. His post  on his blog, CAAFlog, provides more specific details. Here’s the important part:
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.”
Amusingly or not, it appears that the court and the legal teams were not only unaware of the law, but some had even research military law and not found this legislation. That’s kind of scary, if you ask me.
The state of Louisiana has 25 days to petition the court to reconsider its decision. I’m guessing if Louisiana petitions, the court won’t bother. Admitting that this kind of oversight is sufficient to reconsider will set a precedent that could overwhelm the court with spurious requests.
Of course, that throws the federal statute itself into question as well.
Ever notice the more our societies “evolve” (Kennedy’s word, by the way), the worse it seems to get? More proof that Darwin didn’t know what he was talking about either.