Last term, the Supreme Court decided that it is unconstitutional to apply the death penalty to a person convicted of raping a child. The opinion stated that there is a national consensus against using the death penalty for the rape of a child. However, the opinion overlooked legislation making the death penalty available in child rape cases under military law.
Today, in their private conference, the Justices will decide whether to reconsider their decision. In the final brief
submitted by the State of Louisiana
and joined by the Department of Justice, it is argued that policy is moving toward making the death penalty available as punishment in child rape cases. The brief concedes that the Court may base the ruling on its own judgment only, but states that the military law passed by Congress and signed by the president should also be considered when interpreting the Eighth Amendment. Both Barack Obama and John McCain criticized the Court’s initial ruling in this case, and the final brief cites the candidates' statements as further evidence that the public supports using the death penalty in child rape cases.