Oops.

By now everyone knows about Kennedy v. Louisiana, 554 U.S. ____ (2008), a case decided late last term in which the Supreme Court ruled 5-4 that a state violates the Eighth Amendment’s prohibition against cruel and unusual punishment by imposing capital punishment for the non-homicide crime of child rape. The decision was based in part on what the majority described as “a national consensus against capital punishment for the crime of child rape”. That in turn was based on the “fact” that only six states have authorized execution as a punishment for child rape and the federal government had not.

Yesterday the state of Louisiana filed a Petition for Rehearing (pdf, 18 pages). Why does the state think it has a snowball’s chance in hell at relief the Court virtually never grants? Well, it seems that the federal government does in fact sanction capital punishment for the crime of child rape. The provision at issue was buried deep — Section 552(b) — within the federal National Defense Authorizations Act of 2006 and authorizes the death penalty for rape of a child in cases governed by the Uniform Code of Military Justice. In September 2007 the president signed Executive Order 13,447 implementing the child-rape death penalty provision via amendment to the Manual for Courts-Marshal.

Louisiana’s petition contains a big fat mea culpa along the lines of “We suck for not finding that statute and bringing it to the Court’s attention earlier, and we apologize deeply for sucking so much.” Despite the suckery, though, Louisiana insists that Section 552(b) warrants a rehearing because a key “fact” on which the Court based its decision isn’t a fact at all.

But the state needn’t be so hard on itself. The list of people who dropped the ball on Section 552(b) is lengthy and illustrious. It includes the state’s lawyers, the attorneys for Patrick Kennedy, the Solicitor General of the United States, AND nine justices of the U.S. Supreme Court along with their law clerks, the cream of nation’s law schools.

And that was just at the federal level. A bunch of highfalootin’ legal talent missed Section 552(b) when Kennedy was pending before the Supreme Court of Louisiana as well.

One guy who didn’t miss it was Dwight Sullivan, a Marine Corps Reserve colonel currently working for the Air Force as a civilian criminal defense lawyer handling death penalty appeals. A military justice aficionado, he blogged about the mistake just a few days after the decision.

So what happens now? According to Supreme Court Rule 44, there’s no oral argument on petitions for rehearing. Kennedy’s lawyers don’t get a chance to respond unless the Court expressly asks for a response. A simple majority of justices can grant the petition, but only on request of a justice who concurred in the original decision. In other words, the petition will be denied automatically unless one of the justices in the majority agrees that a rehearing is warranted.

This is a rather big embarrassment for everyone involved, including and perhaps especially the Court itself. In the end, though, that’s all it’ll amount to. Prediction: the petition is denied and majority simply issues an amended opinion briefly describing Section 552(b) and why it doesn’t affect the outcome.

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