Justice Kennedy, Wrong on Facts, Wrong on Law

Last week I told you about Justice Stevens' factual mistakes in Heller and Hamdan. This week Justice Kennedy is under the microscope in Kennedy v. Louisiana, thanks to the military justice blog CAAFlog.

Dwight Sullivan at CAAFlog noticed that Justice Kennedy flubbed the facts about federal capital punishment. Kennedy wrote that the death penalty for child rapists was only available in six state jurisdictions and not available under federal law. That's not true, and in fact such punishment is a recent occurrence, driving another nail into Kennedy's false claims that the U.S. is trending away from the death penalty for child rapists.

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."

Sullivan sounds a little peeved that nether side made mention of the law. When asked, defendant's counsel said "We just assumed it was defunct...We figured if somebody in the government thought otherwise, we’d hear about it.” Sullivan's discovery made it in the N.Y. Times today.

Kennedy's legal problem is that he was more than willing to adopt a squishy standard like "evolving standards of decency." He just refused to admit that the evolution of law in the U.S. is towards executing child rapists.

posted by Gabriel Malor at 11:47 AM

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