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Blogger Finds Factual Error in Kennedy's Kennedy Opinion:

In turns out that Justice Kennedy's opinion in Kennedy v. Louisiana declaring the death penalty unconstitutional as a punishment for child rape mischaracterized federal law on the matter. As the NYT reports this morning, Kennedy's opinion claimed that the death penalty was only available in six jurisdictions within the United States, but that's not true. Kennedy correctly observed that the death penalty is not available for child rape in thirty of the thirty-six state jurisdictions that allow capital punishment. But Kennedy wrongly asserted that federal law does not provide for capital punishment either. This latter claim is simply untrue. Indeed, Congress has provided for the death penalty for child rape quite recently.

The mistake was uncovered by military blogger Dwight Sullivan, in this post for CAAFlog. As Sullivan noted, the FY2006 National Defense Authorization Act provided for capital punishment for child rape.

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."

That is 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?

There is still time for the parties to the case to file a petition for reconsideration, but such petitions are rarely granted. I doubt Justice Kennedy would have decided the case any differently had he been more informed about current federal law. Nonetheless, it should be quite embarrassing that none of the advocates noted this error until now.

The NYT story closes with a kicker:

No one in the military has been charged with a capital crime yet under the revised provision. And despite the flurry of activity surrounding the death penalty, the military has not in fact executed anyone for decades. Its last execution took place on April 13, 1961, when Pvt. John A. Bennett was put to death by hanging. His crime: the rape of an 11-year-old girl.

UPDATE: How bad was Justice Kennedy's mistake? Consider this passage from his opinion discussing the allegedly evolving consensus:

As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuseā€¦. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim's death.
"Well, not exactly," notes Andrew McCarthy. He adds: "In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction."

Related Posts (on one page):

  1. Should the Supreme Court Take Advantage of the Web?
  2. Post Calls for Kennedy Rehearing:
  3. Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
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Post Calls for Kennedy Rehearing:

On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape.

There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.
The Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.

The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.

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Should the Supreme Court Take Advantage of the Web?

The recent mistake by the Supreme Court in the Kennedy case (missing a federal law authorizing the death penalty for child rape) has prompted this interesting idea from law professor Tom Smith over at The Right Coast. He suggests that the Supreme Court should post its decisions on the Web before they become final, to take advantage of bloggers who might discover errors:

Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back — "No, no, you're getting that wrong. There is a federal law on this — here, I'll send you the cite."

The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.

When I was a judge, I tried to take advantage of the wisdom of others in a very modest way. I circulated "tentative" written rulings to the parties before holding oral argument, and then at the argument asked the parties whether they saw anything wrong with my proposed decision. Perhaps the Supreme Court could read the merits briefs in a case, release tentative opinions to the general public, and then hold oral argument — followed by revisions of the opinions if the arguments (and perhaps supplemental briefing) disclosed any errors.

Update: Law prof Jason Mazzone has made a similar suggestion to this a few years back, available at this link.

Related Posts (on one page):

  1. Should the Supreme Court Take Advantage of the Web?
  2. Post Calls for Kennedy Rehearing:
  3. Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
45 Comments