Given the obvious flaws in the decision, pointed out by the press and bloggers around the web, this case is ripe for reconsideration.

Louisiana prosecutors asked the Supreme Court yesterday to revisit its recent decision outlawing the death penalty for people convicted of raping children.

The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military convicted of child rape.

The court almost never grants such requests, but lawyers for Louisiana said their situation is different. The 5 to 4 decision, written by Justice Anthony Kennedy, said the absence of any recent executions for rape and the small number of states that allow such executions demonstrate "there is a national consensus against capital punishment for the crime of child rape."

When Congress in 1994 expanded the number of federal crimes that could get the death penalty, it did not include raping a child, Kennedy said.

Only after the decision was issued on June 25 did anyone point out that Congress changed that law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.

Now here's the problem -- it takes five justices to reconsider a ruling. Will any of the five justices in the majority vote to reconsider the case, given the glaring error upon which the decision was based? Does the majority decision even hold water any longer? And if it doesn't, isn't that an even more serious reason for the justices in the majority to refuse reconsideration, given the strong anti-death penalty bias of several of those in the majority?

Posted by: Greg at 06:05 AM | Comments (8) | Add Comment
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