Rehberg Calls on Supreme Court to Reconsider Opposition to Death Penalty for Child Rapists


By:  Denny Rehberg
Date: July 10, 2008
Location: Washington, DC

Rehberg Calls on Supreme Court to Reconsider Opposition to Death Penalty for Child Rapists

Montana's Congressman, Denny Rehberg, today contacted the Justices of the United States Supreme Court asking them to reconsider a court ruling declaring the death penalty for child rapists unconstitutional. In 1997, Montana amended its death penalty statute to include child rape, becoming one of five states to do so.

"As a father of three, I take very seriously any government actions that threaten the safety of America's kids," said Rehberg, a member of the House Appropriations Committee. "So I was extremely disappointed when the Supreme Court went against the will of Congress, and the will of Montanans, and prohibited states from using the death penalty on child rapists. It's critical my colleagues and I make a strong statement that this decision was just plain wrong."

On June 25th, 2008, the Court, in Kennedy v. Louisiana, determined that the death penalty for child rapists was unconstitutional due to a "national consensus" against it. Unfortunately, this premise was not only in incomplete but also inaccurate. The "national consensus" described by the Court failed to consider the fact that two years ago Congress authorized the death penalty for child rapists in legislation that passed overwhelmingly in both the House (374-41) and the Senate (95-0).

Today, Rehberg joined several House colleagues in asking the Supreme Court "to reconsider the case in light of the full and complete factual picture."

"Elected officials from all 50 states have voted to authorize this important provision," said Rehberg. "It's indisputable that there is consensus in favor of using the death penalty to protect our kids. While I respect the separation of powers, this ruling was woefully inaccurate and needs to be reconsidered."


Dear Justices,

We were deeply dismayed by the Court's decision in Kennedy v. Louisiana on June 25, 2008, that failed to understand both the immeasurable pain, anguish and life-long scars of children under twelve who are brutally raped by an adult and the legislative response that balanced that harm by making the death penalty the maximum punishment for these horrific crimes. However, we were even more troubled to learn that a central factual basis for the majority opinion was not only incomplete, but inaccurate.

Specifically, the Court in the majority opinion noted that in the Federal Death Penalty Act of 1994 Congress "expanded the number of federal crimes for which the death penalty is a permissible sen­tence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse." The Court went on to state that "[t]he evidence of a national consensus with respect to the death penalty for child rapists … shows divided opinion but, on balance, an opinion against it." Further, the Court noted that "[t]hirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty" but "only six of those jurisdictions author­ize the death penalty for rape of a child."

Apparently, the Court was unaware of the "national consensus" on this issue enacted just two years ago. In particular, Congress in 2005 through the duly elected representatives from all across the country enacted the death penalty for child rapists under the Uniform Code of Military Justice. That provision - Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006 (became Public Law No. 109-163 on January 6, 2006) - provides that until the President otherwise provides the punishment for the rape of a child may not exceed "death or such other punishment as a court-martial may direct." In September 2007, President Bush issued Executive Order 13447 that codified the provisions of Public Law 109-163, including the provision of the death penalty for child rape, into the 2008 edition of the Manual for Courts-Martial. Accordingly, the Federal Government does indeed have the death penalty for the rape of a child.

More importantly, the adoption of that provision clearly demonstrated a "national consensus" of which the Justices were not aware. The provision was included in a bill that passed the House by a vote of 374-41, and the Senate by a vote of 95-0. In the House, the 374 Members supporting the bill represented all 50 states, while the 41 Members voting against the bill were from just 16 states and together none of those opposing the bill represented a majority of that state's Congressional delegation. In the Senate, both Senators from 45 States voted in favor of the bill. In addition, one Senator from the other five states supported the bill and no Senator voted in opposition; putting all 50 states in support of this provision.

As such, we the undersigned Members of Congress respectfully ask the Court to sua sponte withdraw its June 25, 2006 opinion in this matter and reconsider the case in light of the full and complete factual picture.

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