When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states – not in any of the 30 other states that have the death penalty, and not under the federal jurisdiction either, says the New York Times. The inventory of jurisdictions was a central part of the court's analysis, the foundation for Justice Anthony Kennedy's conclusion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy's confident assertion about the absence of federal law was wrong. A military law blog pointed out that Congress revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. Anyone in the federal government who knew about these developments did not tell the court. The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals. Sullivan was reading the Supreme Court's decision on a plane and was surprised to see no mention of the military statute. “We're not talking about ancient history,” he said in an interview. “This happened in 2006.”