Quinnipiac poll's in a footnote.

Anon:

Petitions for rehearing are pretty rare, and it seems to me that given they only have to swing one vote, it's reasonable to try here after the mistake was revealed about the federal military death penalty statute.

That said, I'd be pretty surprised if rehearing is granted, and even more surprised if rehearing is granted AND the replacement opinion doesn't come to the same result.

On another note, "I neglected to mention it in my brief" seems like a particularly poor reason for reconsideration. Generally, you don't get reconsideration for something that you could have put in your brief.

It will be interesting to see the court say, what we said was true and the foundation of our decision isn't true after all. But we don't care.
Might's well come right out.

I don't have the original briefs. Was there an argument back and forth over whether there was or was not a "national consensus" on the death penalty for child rape? Or was the Court going off on its own to discern one?

we should not be all suffering the consequences of a Supreme Court that lept to a factually incorrect conclusion.

The Supreme Court does not decide questions of fact, and it didn't do so here. If there was another fact out there that may have made its legal conclusion seem more or less correct, it doesn't mean the court's decision was factually wrong (or legally wrong, for that matter).


But because the Supreme Court (or at least those who joined the Kennedy majority) have been labeled "pro-child rape" and accused of supporting child rape and the evildoers who commit it, I think the Court will not only grant rehearing, but quickly reverse itself. Note my prediction. Unpopular decision, harsh insults to the court, and an allegedly overlooked (though irrelevant as I see it) fact will cause the rehearing petition to be quickly granted and the court will issue an opinion reversing its decision with only Ginsburg dissenting (beacuse we all know she loves child-rape).

It's a sad day for the 8th Amendment.

However, since I hate children, I am agnostic on the issue of executing child rapists. I like that it gives them the incentive to murder their kiddie rape victims. While I'm not in active support of child murder, consider my view of children on par with that of the late, great Bill Hicks. Kids are annnoying, I can't stand them, and if the choice is between a kid being murdered or a kid being raped and then murdered, I'd much rather have the latter. After all, a raped kid is presumed to become psychologically damaged and will grow up to either be a criminal or just incredibly whiny and annoying. So, like all the other people who support executing child rapists, I am unopposed to a law that encourages child murder (especially the murder of children who will be more annoying than the average kid). Look at the number of criminals who say they were raped as a child to explain their actions and mitigate their sentence. Assuming they're telling the truth about being raped as a child, society would have been better off if they'd been murdered right after the rape. That's what the law at issue in Kennedy v. Louisiana would accomplish.

Incidentally, insofar as the child rape victims are murdered, they won't be able to identify or testify against the persons who raped them. So more child rapists will go free, too. That I'm against, but everyone else would rather have a dozen child rapists go free in exchange for the ability to execute one of them. As long as it makes adults feel better at the expense of children, so be it. I really hate kids. I'd rather have a dozen adults feel good about themselves than one child not raped and murdered. Who wouldn't? As long as we feel good about our laws, the consequences thereof don't matter - particularly when children are involved. If the law on its face sounds like it will protect children, you can support it without any further though or deliberation and feel good about yourself.

I say we also execute people who abuse children, who sell drugs to them, who sell alcohol to them, who sell tobacco to them, who buy them weapons, or commit any other offense where a child is either the victim or the likely sole witness. Let's take "protecting the children" by creating an incentive to murder them to its logical extreme. I won't miss any of the noisy little brats.

Flame away at me - but you either support murdering child rape victims or you support the current decision in Kennedy. Can't have it both ways. Oh wait, this is America... I forgot, you have a constitutional right to be an inconsistent, illogical hypocrite, and to take the safe position in all debates. As if it takes the slightest bit of thought, guts, passion, or principles to be part of the "child rape is horrible and we should execute those who commit it" crowd. Really brave stance there...takes a lot of balls to want to execute a child rapist. I bet you're "anti-terrorist" also. Wow. How admirable, how brave. The land of "lower taxes and go to war" never ceases to amaze me.

I wrote: On another note, "I neglected to mention it in my brief" seems like a particularly poor reason for reconsideration. Generally, you don't get reconsideration for something that you could have put in your brief.

Roger Schlafly responded: Even if the Louisiana lawyer made an oversight in his brief, we should not be all suffering the consequences of a Supreme Court that lept to a factually incorrect conclusion.

Criminal defendants lose cases every day that they would have won if their attorneys had properly raised the issue at the right time. Sometimes that can be excused because a defendant has the right to the effective assistance of counsel at trial and on the first appeal, but not always.

As to us "all suffering the consequences" of the error, the result of this decision is that child rapists will languish in prison until their natural death instead of until their execution. As a result of this decision, convicted child rapists will get one appeal, and will then be ignored, instead pursuing years of repeated court challenges. Some of those additional challenges would be successful, causing more victims to have to go through retrials years later.

Locking up child rapists forever and ignoring them. That's not exactly "suffering."

(And don't blame defense attorneys for the delays in capital litigation. Ironically, the effort to crack down on death penalty habeas actions have have actually increased the length and complexity of the litigation. Instead of getting to the merits, parties can spend years litigating and appealing the minutiae of procedural default, exhaustion, and the statute of limitations.)

Confused: the NYT article is probably combining the statistics for rehearing petitions filed after the certiorari stage with petitions for rehearing after the case is actually decided.

If the petition is relying on "I neglected to mention it in my brief", perhaps it should also take this opportunity to mention that Congress has in fact authorized the death penalty for at least 10 other non-homicide offenses under the Uniform Code of Military Justice.

Or, would letting the Court know that the military can execute not only child rapists but also someone who essentially punches his boss and walks off the job (UCMJ Arts. 85 and 90, in time of war), undermine the petitioner's argument regarding a "national consensus", and only highlight the fact that the military justice system is designed primarily to serve the specialized needs of the armed services and has very little bearing on the question presented to the Court?

No argument from me on that point, and better yet the military is protected by UCMJ Art. 56's prohibitions against cruel "or" unusual punishment (including, but not limited to, "flogging, branding, marking, or tatooing" as well as "the use of irons, single or double, except for the purpose of safe custody").

I'm just saying it's a whole different environment: would any other jurisdiction need to be told not to flog or tattoo its prisoner?

Cywynes:

Patrick Henry didn't explicitly mention the Air Force either, but it's pretty clear what he meant.