(Oct. 10, 2008) On October 1, 2008, the U.S. Supreme Court denied a motion for rehearing and affirmed its June 25, 2008, holding in Kennedy v. Louisiana that the ban on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution bars the death penalty for child rape.
When Kennedy v. Louisiana was first briefed and argued, the Court was not apprised by counsel that the death penalty for rape may be available in the military justice system. The Court's June 25 decision rested in part on a finding that in most U.S. jurisdictions, the death penalty is unavailable for rape. Following the decision, Louisiana petitioned for rehearing, informing the Court that the death penalty may be available in the military justice system. It noted a 2006 amendment to the Uniform Code of Military Justice that revised the offense of rape, defining it as two separate crimes, adult rape and child rape, and provided that both these crimes will be punished “as a court-martial may direct.” Louisiana also noted a 2007 executive order in which the President left the death penalty in place as a potential sentence for rape in the Manual for Courts-Martial.
In declining the motion for rehearing, the Court said that while the current status of the availability of the death penalty for rape in the military justice system is uncertain, authorization of the death penalty in the military sphere does not establish the death penalty's constitutionality in the civilian context. The Court said it did not need to decide whether certain considerations might justify differences in the application of the Eighth Amendment to military cases, leaving that question for another day. (Kennedy v. Louisiana, No. 07-343, reh'g denied (Oct. 1, 2008), available at http://www.supremecourtus.gov/opinions/07pdf/07-343Kennedy.pdf.)