Louisiana state prosecutors on Monday petitioned the US Supreme Court to reconsider its June decision in Kennedy v. Louisiana, where it found that imposing the death sentence for child rape where the victim was not killed constitutes cruel and unusual punishment. The Court had noted in that ruling that very few states had such laws and that - incorrectly - there were no federal laws allowing the punishment for rape, but lawyers for Louisiana argued in their bid for rehearing that a 2006 amendment to the Uniform Code of Military Conduct does in fact allow the death penalty at court-martial for rape and child rape. It is highly unusual for the Court to agree to such petitions, but Louisiana lawyers say a review is warranted because of that oversight.
The US Department of Justice said earlier this month that it had mistakenly failed to brief the Supreme Court on the existence of the military law allowing capital punishment for child rape before the court decided the case. The oversight was first raised by a civilian Air Force lawyer in his blog on military justice. The Supreme Court's holding reversed a 2007 decision by the Supreme Court of Louisiana.