The Justice Department has made an extraordinary statement of regret for its handling of the case of Kennedy v. Louisiana, in which the Supreme Court last month ruled that the death penalty for non-homicide child rape was unconstitutional. As reported in the New York Times, no one told the Court in briefing the case that under a law passed by Congress in 2006, child rape was made eligible for the death penalty under the Uniform Code of Military Justice. Since Justice Anthony Kennedy based the 5-4 ruling in part on the consensus of jurisdictions that do and don’t call for the death penalty for child rape, the omission was significant. Following is the text of the statement issued Wednesday:
“We regret that the Department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed. It’s true that the parties to the case missed it, but it’s our responsibility. Yesterday, shortly after learning of the law, we advised the Clerk’s office at the Supreme Court. Only parties to a case may petition for rehearing. If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing.