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September 17, 2008

Additional briefing in Kennedy child rape rehearing debate

Over at SCOTUSblog, Lyle Denniston in this post summarizes the new briefs filed today in the Kennedy child rape case.  The post, which is titled "Court urged to hold fast against death for child rape" and includes links to the new filings, starts this way:

Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child. Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

September 17, 2008 at 04:11 PM | Permalink


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» New Briefs in Kennedy v. Louisiana from Sex Crimes
As noted by SCOTUSBlog and Sentencing Law Policy have noted, new briefs are out in Kennedy v. Louisiana. First up is the brief from Kennedy. This is from the SCOTUSBlog summary:Lawyers for a death-row inmate in Louisiana, arguing that military [Read More]

Tracked on Sep 17, 2008 11:43:51 PM


As a criminal defense attorney, I found this article very interesting as it pertains to the differences between criminal law and military law. Very interesting points in this case, on all aspects - including that he is allegedly the only person in the United States on death row for a non-homicide offense.


Posted by: Greg Ohio Municipal Courtlaw | Sep 17, 2008 4:48:18 PM

I have one comment about Jeff Fisher's brief: he says that when and if the military imposes the death penalty for child rape, the Supreme Court will have ample opportunity to decide the constitutionality of that punishment. But doesn't that presuppose that Congress will pass pending legislation that allows the SCOTUS to review judgments of the courts of military appeals, something that cannot occur under currenty law?

Posted by: Da Man | Sep 17, 2008 8:51:36 PM

The Supreme Court can review decisions of the Court of Appeals for the Armed Forces. http://www.armfor.uscourts.gov/AppellateRev.htm

Posted by: Jay | Sep 17, 2008 10:45:03 PM

The whole problem with Kennedy is that it should have flatly said the death penalty for non-death cases violates numerous constitutional provisions. By relying upon some current standard their decision is so fluid. Apparently even the finding of some military statute that allows the government to kill people can influence such a decision.

The majority in this case MUST take a MUCH STRONEGR position!

Posted by: Michael hadley | Sep 18, 2008 12:11:14 AM


Thanks for the clarification; I forgot that review of death cases is mandatory in the US Military Court of Appeals, giving the SCOTUS a crack at discretionary review.

Posted by: Da Man | Sep 18, 2008 9:26:43 AM

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