Monday, July 21, 2008

Military law front and center in Kennedy v. Louisiana rehearing petition

Led by Georgetown Law Professor Neal Katyal, attorneys for Louisiana today sought reconsideration of last month's Supreme Court opinion holding the death penalty unconstitutional for the rape of a child in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). Here's a link to the rehearing petition, courtesy of SCOTUSblog, and here's a link to SCOTUSblog's coverage of the rehearing petition. Here's a link to the NYT article on the rehearing petition.

Military law mavens will recognize Professor Katyal as the counsel who brilliantly argued, and won, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), which invalidated the old military commission system largely on the ground that it violated Article 36 of the UCMJ.

The Kennedy rehearing petition focuses on Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3363 (2006), and the President's subsequent MCM changes to incorporate that statute into military practice. The petition is rich in military legal history. It notes that under military law, rape has been "punishable by death at least since the 1863 Army Articles of War." Petition for Rehearing at 1-2. The Petition also observes that the Supreme Court "has looked to military law to interpret the Eighth Amendment since at least 1879," citing a case that upheld this sentence imposed by a Utah judge for premeditated murder: that "between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of [December 14] you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead." See id. at 10 (citing Wilkerson v. Utah, 99 U.S. 130 (1879)). The petition also observes that in his concurring opinion in Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan "referred to the practice of 'review[ing] various treatises on military law' when seeking societal trends." Id. (quoting Furman, 408 U.S. at 275 (Brennan, J., concurring)).

After asking the Supremes to reconsider Kennedy based on military law's effect on the opinion, the petition asks the Court to reconsider Kennedy based on its effect on military law. The petition argues that Kennedy "invalidates a federal statute without argument. There is no obvious way to read the decision that maintains Section 552(b). Military courts, for example, have applied Coker [v. Georgia, 433 U.S. 584 (1977)] without entertaining any notion that courts-martial are exempt from this Court's Eighth Amendment pronouncements regarding civilians. See United States v. Clark, 18 M.J. 775, 776 (N-M.C.M.R. 1984)." Id. at 13. But in Matthews, CMA entertained just such a notion when it observed:
Congress obviously intended that in cases where an accused servicemember is convicted of premeditated murder, certain types of felony murder, or rape, the court-martial members should have the option to adjudge a death sentence. See Articles 118 and 120. Probably this intent cannot be constitutionally effectuated in a case where the rape of an adult female is involved, Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (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.
United States v. Matthews, 16 M.J. 354, 377 (C.M.A. 1983).

All eyes now turn to the Acting Solicitor General. He may have to walk a tightrope; presumably he won't want to argue that Kennedy necessarily invalidates the death penalty under Article 120 because he will want to retain the maneuver room that CMA created in Matthews.

The point of my original post on this subject was that the military justice system is invisible. But as a result of Linda Greenhouse's NYT piece on the overlooked Section 552(b) of the NDAA for FY 2006, that's certainly not the case today.


Cloudesley Shovell said...

You're presumably too modest to point it out, so I'll do it for you: CAAFlog was cited in footnote 5 of the rehearing petition.

Very interesting and persuasive petition. Footnote 6, citing a recent opinion poll, points out that 55% favor the death penalty for child rape. This is probably a polite way of reminding the Court that it engaged in fact-finding on the "national consensus" without giving either party an opportunity to develop those facts below.

The chart on page 8 is also very persuasive, showing that the trend is clearly towards wider acceptance of the death penalty for child rape. Unfortunately, the chart contains an error--death has long been the penalty for the old Article 120, which makes no distinction between rape of an adult or child. "Armed Forces" should have been listed for every year, not just 2007.

Will CAAFlog be the instigator of a Supreme Court rehearing? Will Louisana's petition get the necessary five votes for rehearing? I wager one dollar on yes. Anyone wanna take that bet?

Anonymous said...

My sources tell me this is a shoe-in for rehearing.

Christopher Mathews said...

Little did I know that my T-shirt would one day be cited in a document filed with the Supreme Court.

Well done, CAAFlog!

Anonymous said...

CAAFLOG will be cited favorably by those who FAVOR the death penalty. Well done!

Anonymous said...

Good job. We'll get those Catholic priests yet.

Anonymous said...

To be fair though -- especially in light of the effort it makes to focus on military legal history -- I think the petition should also have cited the other dozen or so instances where the UCMJ authorizes the death penalty, only one of which (premeditated murder) actually requires a person to have died as a result of the accused's actions. In this context, the death penalty for child rape might appear less to be evidence of any "national consensus" of its appropriateness, and more of a special recognition of the unique needs and interests of the military justice system.

Mike "No Man" Navarre said...

Note also footnote 18, I think Petitioner's could have gotten their number of people affected by the UCMJ change higher, and should have. They chose to use the active duty population, but left out Coast Guard, 110,000 or so activated Reservists/NG/etc., and maybe another 840,000 Reservists. Those Reservists are subject to the UCMJ, in many cases, and on active duty at least two weeks a year (though I realize they limited there # to active duty, Reservists msut do 2 wks active duty to remain paid Reservists).