Tuesday, September 9, 2008

Harmless Error

In a rare move, the Supreme Court said it might reconsider its June decision that struck down the death penalty for crimes that fall short of murder, after a law blog revealed that the government left out a fact that would have bolstered its argument that executions for such offenses are constitutional.


Among categories of death penalty cases, military executions are the rarest of the rare. According to the Death Penalty Information Center, the last military execution was in 1961 for rape and attempted murder. There are currently nine offenders awaiting sentence compared to 3200 in state prisons.

Law clerks, justices, and attorneys for both sides overlooked the fact that the U.S. military permits the execution of child rapists. But it is easy to see why the provision was overlooked - military executions are virtually non-existent.

Can those who support a re-hearing on this case say harmless error? It is heard all the time in the death penalty cases when evidence of mitigation is omitted from a trial. And the fact that six states permit the execution of child rapists is also a Potemkin Village - only two people have been sentenced to death under this provision. One could use the same argument of a trend toward abolishment based on the actions of New Jersey and the other states that have studies underway.

Overlooking the military provision regarding child rapists is clearly harmless error. The decision in Kennedy v. Louisiana is sound policy - time to move on and stop pandering on this issue.

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