Justice Kennedy's majority opinion noted that six states had authorized the death penalty for the rape of a child. Kennedy, slip op. at 12. The Court then observed:
Id. at 12-13.
By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 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. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U. S. C.). Under 18 U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death.
The majority later stated: "Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child." Id. at 15.
Writing for the four dissenters, Justice Alito countered: "The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court." Kennedy, dissent slip op. at 13 (Alito, J., dissenting). Justice Alito continued, "Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values." Id.
But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.
Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."
That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.