Wednesday, July 02, 2008

DOJ notes possibility that Kennedy v. Louisiana doesn't apply to courts-martial

Thursday's NYT has this piece by Linda Greenhouse following up on her article in today's NYT about Kennedy v. Louisiana's failure to note that the National Defense Authorization Act for Fiscal Year 2006 allowed courts-martial to adjudge death for the rape of a child.

Thursday's article reports that DOJ "acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact" while the Supremes were considering Kennedy v. Louisiana.

But here's the part of the article most important for we military justice wonks:

The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.

The statement noted that in a 1996 decision, Loving v. United States, which upheld the military's general death penalty provision, the justices simply assumed, without deciding, that the court's death penalty jurisprudence was fully applicable to the military. Since no death penalty prosecution has been brought since the military provision took effect, it is not clear how or when its constitutionality may be tested
Pre-Kennedy, military appellate courts consistently side-stepped the question of whether, despite Coker v. Georgia, 433 U.S. 584 (1977), a court-martial could adjudge a death sentence for rape. See, e.g., United States v. Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005) (holding that LWOP is an authorized punishment for rape regardless of Coker's applicability); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (holding that the propriety of a capital referral in a rape/attempted murder case was waived by defense counsel's failure to make a constitutional challenge to the capital referral); United States v. Gonzales, 46 M.J. 667 (N-M. Ct. Crim. App. 1997) (declining to resolve whether the military's death penalty for rape is constitutionally permissible in light of Coker), aff'd, 51 M.J. 306 (C.A.A.F. 1999).


Hogan H said...

It is amazing..

Inquiring Minds said...

How does it feel to be called a "civilian Air Force lawyer"?

Anonymous said...

I think it is better than be called Air Force Lawyer...

Anonymous said...

Or worse yet, a Marine reservist civilian Air Force death penalty lawyer. CAAFlog -- you are so many things to so many people!

T.T. Thomas said...
This comment has been removed by the author.
Elle said...

First, re 'side-stepping,' no court of appeals (military or civililan) rules on issues not before it. It is more accurate to say that since Coker (1977), no military servicemember has ever been sentenced to death for rape, and so an opportunity has not arisen for a military court of appeals to rule on the constitutionality of the death penalty for rape.

Second, United States v. Matthews (CMA 1983) demonstrates the historical difference between state laws and military law. Following Furman v. Georgia (1972), states set out to re-write their death penalty laws so they would be constitutional. The military was (and is) not so bound. Only when Army servicemember Matthews (premeditated murder) circa 1983 challenged the constitutionality of the military death penalty was the death penalty thrown out.

Third, the 1983 Matthews decision notes that the death penalty “[p]robably ... cannot be constitutionally effectuated in a case where the rape of an adult female is involved, Coker v. Georgia, 433 U.S. 584 (1977)—at least, where there is no purpose unique to the military mission that would be served by allowing the death penalty for this offense.” Again, the court does not treat the issue because it has not been specifically challenged. Matthews was sentenced to death for premeditated murder, not rape. Calling this 'side-stepping' is not accurate.

Fourth, one can see from D. Sullivan's publications elsewhere that he is well versed on these matters. It seems the bone he wants to pick is with why military law need not conform precisely with civilian law when it comes to the death penalty, particularly during peacetime and when not overseas. He seems to be asking: If the child rape death penalty statutes of Louisiana, Montana, Texas, South Carolina, and Oklahoma have to change immediately, then why don't the military's?

The history of military law indicates that it exists because of concerns that "civil courts could not function in all places during hostilities" (Loving v. United States, 1996). If Sullivan is arguing for a UCMJ that distinguishes more precisely between peacetime and wartime, overseas and at home, then this has merit. Notably he makes this argument in the capacity of an armed services defense counsel. He could be said to be writing from the standpoint of wanting to win his cases rather than from objectivity. Still, it's in the adversarial spirit. I would count on this spirit before any other to come closest to Truths.