Kennedy's brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy's counsel, but it's clear that no such assistance was accepted. Since petitioner's counsel knew that the Acting SG's brief would be prepared with the assistance of the DoD General Counsel's office -- and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG's previous motion for leave to file a brief in support of rehearing before also signing onto today's brief from the Acting SG -- why wouldn't petitioner's team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn't and it shows.
What is probably the most significant problem arises in the petitioner's brief's desuetude argument. The petitioner argues at one point that "[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years." Petitioner's Brief in Opposition at 3. The brief later argues, "The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since." Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members' finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it's surprising that petitioner's brief would make such a major mistake.
That large mistake is immediately followed by a smaller one. The brief states, "There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder." Petitioner's Brief in Opposition at 8. Again, wrong. If we are using "death row" to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using "the military's death row" to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase "currently . . . on the military's death row" isn't descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner's counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.
But wait; there's more. The brief seems to make a fairly major mischaracterization when it contends that "[t]he President's reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial." Petitioner's Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner's counsel that that's wrong. President Bush didn't reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn't a needle in a haystack; it was a pitchfork in a hay bale.
The brief also features what seems to be an analytic lapse. The brief posits: "The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required." Petitioner's Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn't whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn't -- not only because Maryland doesn't authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy's offenses. So the jurisdictional nose counting process doesn't ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.
The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an "appropriations bill," id. at 9, listing Article 120 of the UCMJ as a "Federal Rule" rather than a "Statutory Provision," id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM "Article 120(f)(1)." Id. at 3, 9 n.5. Again, had petitioner's counsel consulted with any competent military justice litigator, those would have been cleaned up.
Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions "whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when 'the penalty of death [is] specifically authorized by this chapter.' 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer 'specifically authorize[s]' such punishment." Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:
Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).
(1) Subsections (a) and (b).-- 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.
Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn't trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).
By comparison, the Acting SG's brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that "in Coker, the plurality's conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress's silence on the subject at that time. See 433 U.S. at 593-596." Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: "In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which 'invalidated most of the capital punishment statutes in this country, including the rape statutes.' Coker, 433 U.S. at 593 (plurality opinion)." Id. at 5 n.2. He then concludes: "The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision." Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case "jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice." Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).
The SG also seems to gild the lily by arguing that "Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate." Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.
The Acting SG's brief also contains an ingenious argument that congressional legislation about the military justice system shouldn't be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.
The next step in the case will be the filing of Louisiana's reply brief, which is due by 1400 next Wednesday, 24 September. We'll look at that brief once it's filed. And then, SCOTUSblog tells us, the "Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30."