Sept. 9, 2008 -- The Supreme Court is taking another look at one of last term's most controversial decisions, that it is unconstitutional to impose the death penalty on those who rape but do not kill children.
The highly unusual order from the court Monday stems from a glaring omission in the case: Lawyers on both sides failed to realize, and therefore failed to inform the court, that Congress had passed a federal law authorizing the death penalty for child rape by military personnel.
The court is asking the parties on both sides, as well as lawyers for the Bush administration, to file court papers on whether a rehearing is required and whether the existence of that federal law should change its analysis of the case. The briefs are due Sept. 24. A decision to rehear the case will take the votes of five justices under Supreme Court rules.
The case, called Kennedy v. Louisiana, was a closely divided opinion in which the court found that while the crime of raping a child is a "revulsion" to society, it does not merit the death penalty.
Justice Anthony Kennedy, writing for a five-four majority, said that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional."
In an emotional dissent, Justice Samuel Alito criticized the majority for finding that the crime of child rape should be penalized differently from that of some murders.
He wrote, "With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist?"
"In the eyes of ordinary Americans, the very worst child rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity," he added.
Louisiana and five other states had laws imposing the death penalty for that crime.
But it appears that none of the parties realized that in 2006 Congress had permitted the death penalty for the rape of a child under military law.
After the decision was released, Dwight Sullivan, an Air Force lawyer, wrote on his military law blog that there existed "a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?"
One reader posted a comment on Sullivan's blog, "Wow. Good find."
The revelation prompted lawyers for the Bush administration and Louisiana to ask the court to revisit the case.
Ted Cruz, former solicitor general of Texas, who represented other states with laws similar to Louisiana's, praised the court's decision to ask for new briefs.
Calling the court's action "extremely rare," Cruz said, "The court's order calling for further briefing indicates that it is looking at this question very closely. That Congress and the president together enacted capital punishment for child rape in the military context only underscores the evolving judgment of more and more elected legislatures that the most egregious child rapists should be eligible for the most serious punishment."
When the decision was released in June, it attracted attention on the presidential campaign trail, as both Sens. Barack Obama, D-Ill. and John McCain, R-Ariz., disagreed with its finding.