"I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters."

Says lawprof Neal Kumar Katyal, who is representing the state of Louisiana as it seeks to reopen the Supreme Court case Kennedy v. Louisiana:

Jeffrey L. Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Mr. Kennedy, a civilian, Professor Fisher said, and Congress has not made child rape a capital offense for civilians.

Professor Fisher added that military law has long made rapes of both adults and children capital offenses in some circumstances. The innovation of the 2006 law was only to break out children as a separate category.

According to the petition filed Monday, the 2006 law is powerful evidence of the direction of public sentiment. “While Congress has not, as yet, applied the death penalty to child rape in the civilian context,” the petition said, “the recent trend (not to mention the general parity between military and civilian law today) indicates that it may very well do so, if given the opportunity.”

As I have already said, I think it is very important for the Supreme Court to rehear the case. The Court's analysis of "the evolving standards of decency that mark the progress of a maturing society" surveyed the law throughout the United States and drew conclusions without realizing that Congress, which represents all the states, had recently approved of the death penalty for the rape of a child (in a law applying to crimes in the military). From the now embarrassingly inadequate opinion:

Louisiana reintroduced the death penalty for rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp. 1996).... Five States have since followed Louisiana’s lead: Georgia, see Ga. Code Ann. §16–6–1 (2007) (enacted 1999); Montana, see Mont. Code Ann. §45–5–503 (2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 2007 Supp.) (enacted 2006); South Carolina, see S. C. Code Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted 2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007)...

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse....

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child....

This crucial passage is junk now.