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DOJ admits overlooking military law in Supreme Court child rape case

[JURIST] The US Department of Justice (DOJ) [official website] said Wednesday that it had mistakenly failed to brief the Supreme Court [official website] on the existence of a military law [PDF text] allowing capital punishment for child rape before the court decided the case of Kennedy v. Louisiana [Duke Law backgrounder; JURIST report]. In Kennedy, the court held 5-4 [JURIST report] that a death sentence constitutes cruel and unusual punishment when imposed for a crime in which the victim was not killed. The majority supported its reasoning by saying that very few states had such laws and that - incorrectly - there were no federal laws allowing the punishment for rape. In its admission, the DOJ noted that a 2006 amendment to the Uniform Code of Military Conduct [LII materials] does in fact allow the death penalty at court-martial for rape and child rape. Lousiana Governor Bobby Jindal [official website] has said lawyers for the state are considering whether or not to petition the court to reconsider the case. The oversight was first raised [CAAFlog post] Saturday by a civilian Air Force lawyer in his blog on military justice. The New York Times has more. The Washington Times has additional coverage.

The Supreme Court's holding reversed a 2007 decision [PDF text] by the Supreme Court of Louisiana. The high court ruling has already been criticized by a wide range of lawmakers.

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