The Supreme Court has refused to rehear a controversial death penalty case. 10/02/08 If you aren't up to speed, here's what happened in the case of Kennedy v. Louisiana. In brief, the facts were that Kennedy raped some poor little girl rather brutally, but she did not, in fact, die. No question on the facts, Kennedy is guilty, and in Louisiana, child rape carried the possibility of the death penalty, which is exactly what Kennedy was sentenced to. Eventually, though, the Supreme Court held earlier this year that there was a ''national consensus'' against using the death penalty in cases where the victim doesn't die as part of the crime. Writing for the majority in a 5-4 decision, Justice Kennedy (no relation to the criminal in the case) provided the reasoning for overturning the sentence based on this national consensus idea. Then there was a bunch of stuff that basically consisted of Kennedy saying he doesn't like the death penalty but wasn't ready to rule it out completely yet. Needless to say, the four dissenters savaged him. But after the opinion was issued on June 25th, someone noticed something. Congress had already instituted a death penalty for child rape for military members, something no one had noticed before the Supreme Court had said there was no such federal law. This caused quite a stir, as that federal law seemed to invalidate the argument that there was a national consensus of the sort in question. So Louisiana, the US Solicitor General, and others asked the Supremes for a rehearing, and now the decision has come down. As predicted, the five justices in the majority weren't ready to retreat and allow the death penalty for brutal criminals unless those criminals killed someone. They explained away the military law, saying that it is irrelevant to civilian affairs. Thus, the state of the law appears to be that if you are a civilian, you are safe from the needle, but if you are a military guy, they can put you to death. The four justices who dissented in the original opinion, needless to say, weren't happy with this latest turn of events either. Only two asked for the rehearing, while Justice Scalia said, in short, that since the majority was just making it up anyway, he didn't think there was any point in voting to rehear the case. In a rather pointed comment, Scalia said that ''the proposed Eighth Amendment would have been laughed to scorn [at the Founding] if it had read ‘no criminal penalty shall be imposed which the Supreme Court deems unacceptable'…[but] that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.'' So the law stands: unless you kill someone, you can't be put to death. Except, that is, if you are in the military — you apparently have less constitutional rights then.

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