Court considering rebriefing death penalty case
Discussion at the Volokh Conspiracy. It concerns Kennedy v. Louisiana, where the Court ruled that the death penalty for child rapists was cruel and unusual punishment, based in good part on finding a national consensus that it was too much. The majority noted that there was no federal law allowing such punishment, and only 6 of 30 States that have the death penalty allowed it, and mentioned that Congress, in establishing a federal death penalty, had not extended it to rapists of children.
The problem was that there was a federal (military code) provision for just that penalty, which neither side found or briefed. Ooops.