06 October 2008 :

A divided Supreme Court refused to reconsider its ruling barring the death penalty for the crime of raping a child, despite having overlooked a recent federal law that authorized capital punishment for members of the military who rape a child.
The five-justice majority brushed aside calls to reopen the issue. June 25, they ruled the death penalty is cruel and unusual punishment for crimes that do not involve murder, and they overturned a Louisiana man's death sentence for raping his 8-year-old stepdaughter.
In declaring these laws unconstitutional, the court's opinion said there was a "national consensus" against the use of the death penalty for crimes such as rape. The justices also said it was their "independent judgment" that the ultimate punishment should be reserved for persons who kill.
Justice Anthony Kennedy wrote the opinion, and John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with it.
But shortly after the decision was handed down, a military blog noted that Congress and the president had updated the Code of Military Justice in 2006 and had authorized a death sentence for the rape of a child. This made for an embarrassing oversight. Neither the justices, their clerks nor the government's attorneys had taken note of the child rape provision in the military code. Once alerted to it, state attorneys for Louisiana, joined by the Bush administration, filed motions urging the court to reopen the case and to revisit its ruling.
But none of the justices were inclined to change their minds. The five justices in the majority issued a four-page opinion that rejected the request to reopen. Instead, they said a new footnote will be added to the decision in the case of Patrick Kennedy vs. Louisiana. It takes note of the updated military code and ends by saying, "We find that the military penalty does not affect our reasoning or our conclusions."