Wednesday’s controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the United States governing the maximum permissible sentence for rape of a child. Remarkably, both the majority and the dissent overlooked a congressional statute right on point: the National Defense Authorization Act for Fiscal Year 2006.

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:

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.

Id. at 12-13.

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.

43 Responses to “The Supremes dis the military justice system”

  1. Anonymous says:

    If the death penalty is unconstitutional for rape (previously for an adult under Coker and now for a child under Kennedy), why is the MCM allowed allowed to use the potential imposition of the death penalty (i.e., an offense punishable by death) as the means by which to have no statue of limitations under Art 43? Shouldn’t the MCM have to list some finite limitations period?

  2. Ry says:

    Wow. Good find.

  3. DonSurber says:

    Colonel, I salute you

  4. Anonymous says:

    The military justice system may not get any respect, but blogs sure are getting the job done.


  5. Elle says:

    Did the Supreme Court tally the military as a jurisdiction in the other death penalty cases where a head count of states was taken? E.g. one should check Coker v. Georgia (1977); Enmund v. Florida (1982); Atkins v. Virginia (2002); and Roper v. Simmons (2005) before demanding satisfaction from the alleged offenders here.

  6. Dave says:

    As the old saying goes, “Military Justice is to justice as military music is to music.”

  7. Anonymous says:

    There is very little to be said for the death penalty at all. That the Supreme Court has begun to question it in situations of rape is at least one step towards a more humane society. The US military’s mission is protection and peace–throughout the world (and hopefully when asked to support other nations as opposed to playing global police). Within that mission is a respect for life, not vindication. Where nearly 140 countries have eliminated the death penalty, the US still stands among some of the most brutal countries in the world which continue to practice this form of punishment, many of which we are actually warring against in order to bring peace and civility. There ARE other ways to bring about justice.

  8. motormanmark says:

    What we need is a Constitutional amendment adding blogs to the checks and balances provisions.

  9. Cloudesley Shovell says:

    First Anon at 2249–

    Art. 43 was amended to explicitly list rape as an offense with no statute of limitations. 10 USC 843(a).

    The history of the limitations period for rape under the UCMJ as compared to federal law is one of utter inconsistency. The federal limitations period for rape is five years. When Art. 43 was amended (in 1995 I think), the stated purpose was to align Art. 43 with other federal limitations periods. About the same time, Congress amended the federal rape and sexual assault statutes. The net result of these statutory changes was that the limitations period for rape under federal law went from none to five years, while almost at the exact same time, the limitations period for rape under the UCMJ went from five years to none. Go figure.

  10. Anonymous says:

    Bet you Kennedy is a catholic. If we killed the child rapists we would be terminating 10,000 Roman Catholic Priests in this country alone. Add the mayors, judges and police who do NOT prosecute catholic priests for these perversions and you got 50-100 thousand that need to be taught what is right and what is wrong.

  11. Anonymous says:

    You got quoted:

    In addition correct me if I’m wrong but I think the military would count as the thirty-eighth jurisdiction, not as tacit constitutionality of the death penalty for child rape. After all, there’s no “don’t ask don’t tell” policy for the general public.

  12. D says:

    As the old saying goes, “Military Justice is to justice as military music is to music.”

    Such a full of crap saying though. The military justice system offers as many, if not more, civil rights protections as does the civilian system and there are some great military marching tunes too.

  13. Anonymous says:

    I hardly see how this is relevant. Military Law is not Civilian Law.

  14. bill says:

    Which is more of a dis? The Supremes failing to mention the UCMJ provision regarding child rape or the Congress’s choice of the DC Circuit over CAAF as the forum for appealing enemy combatant designation from Gitmo’s tribunals.

  15. Anonymous says:

    kudos, my friend.

  16. Miguel says:

    So, let me get this straight…OK, you can rape a child and we won’t kill you unless you kill the child in the process because killing you would be “Cruel and Unusual Punishment.” What about the damage done to the child for LIFE; isn’t that Cruel and Unusual? Why should someone who commits such a heinous act be allowed to remain in human society, even prison human society? What if it’s rape of a baby? Oh, excuse me, the rapist had a rough childhood? He didn’t know it was the wrong thing to do? GMAB, you bleeding hearts. Why don’t we just leave it to the child’s father to commit justifiable homicide, as any red-blooded American father would be wont to do if given the chance? This proves, once again, that the Supremes don’t have their heads on straight!

  17. Norbert Basil MacLean III says:

    Bill, your post at 1154 on 2 Jul 08:

    There is actually a bill pending in this Congress to give the military courts habeas jurisdiction regarding enemy combatants: HR 6274. But I would hope that before Congress addresses HR 6274 it will first address HR 3174 and S-2052 concerning our own troops.

    In general I think the omission of the military justice system by the Supreme Court in Kennedy is just yet another example that military justice, as it applies to our own uniformed citizens, is out of sight and out of mind to the general public. As I’ve pointed out on this blog before, the last time any Congressional committee has had a hearing on the UCMJ was 25 years ago when it passed the Military Justice Act of 1983. Even when the rape statute was added to the NDA of 2006 and incorporated in the UCMJ no Congressional committee actually had a hearing on it. It’s my understanding that the idea came from the Pentagon and it was proposed to Congress via former DoD general counsel Jim Haynes. This was after it was drafted by the Joint Service Committee on Military Justice. It was then added to the NDA and discussed in conference with no public hearings by any Congressional committee.

    In December 2002, U.S. News & World Report, in a cover story “Unequal Justice,” reported Congress’ lack of interest in the military justice system. Apparently the Supreme Court also has a lack of interest in the military justice system as evidenced by its omission in Kennedy. The only branch of government which seems to have any interest in military justice is from the executive branch as it relates to our own troops. The problem with that is there is no true oversight from the other two branches of government relating to what the executive branch does with military justice. Maybe this is why the Supreme Court chose to ignore the American military justice system.

    CAAFlog is right; the American military justice is the Rodney Dangerfield of the legal system.

  18. Anonymous says:

    Wasn’t I reading something on this blog about civility as it relates to anonymous postings? Anon 9:18 and Anon 10:27 seem to be out of bounds. Anon 6:42 is just misguided.

  19. WRB says:

    Interesting observation, tho I don’t think it’s terribly relevant to the case. Which makes me wonder whether it was really “overlooked.”

    See my further comment at:

  20. Anonymous says:

    I am not sure Congress could give CAAF jurisdiction over habeas appeals since it is not an Article III court.

  21. No Man says:

    Good point Anon 1:39

  22. Anonymous says:

    So the 10:27 comment is removed but 9:18’s stays? If the 9:18 comment was a similarly ignorant and hate-filled post about African Americans or homosexuals I am sure it would have been removed.

  23. Bill Buckner says:

    While the comment about Catholic priests was harsh – it was provocative.

    Somebody please explain why all of the Catholic priests who committed child rape (and they did not commit acts of the weak euphimism “abuse”) should not be executed?

    This has nothing to do with hate and nothing to do with Catholocism. The point is about what we as a society are willing to forgive. (The “hate” complaint is a non-sequiter).

  24. No Man says:

    2:35 Anon:

    While those other categories have nothing to do with the case at hand, I dare say that religious beliefs have played and are playing an increasing role in today’s judicial thinking. The issues of child molestation that have become linked to the Catholic religion, at least in America, pose an interesting back drop to the decision. While I wish 9:18 Anon had put the Catholic comment in better context, and avoided seeming to be an ad hominen-imous attack, Anon makes a valid point (not necessarily one I agree with or disagree with), but a point that is at least as deserving of remaining on this page as comments such as, “As the old saying goes, ‘Military Justice is to justice as military music is to music.'”

  25. Anonymous says:

    Actually Bill, the post re: Catholics had a lot to do with Catholicism. The poster “bets” Kennedy is Catholic because of his position in the child rape case. The inference being that Catholic judges will decide cases to protect child molesting priests simply because they are Catholic. The poster suggests police and prosecutors operate with a similar motive because of their religion. This is the same bs logic used to justify bigotry in all forms. But maybe its OK when applied to Catholics.

    No man – you attribute a point to the post that simply was not made by the poster. It is one thing to say religious beliefs play an increasing role in judicial thinking – I think that is a very valid point. But it is another to suggest that judges do the wrong thing to protect members of the clergy from their religion.

  26. dualdiagnosis says:

    Another high five for you.
    Scalia and his staff missed it too? wow.

  27. Anonymous says:

    4:51 Anon,

    You correctly deconstruct Anon’s post about Catholicism. The poster may be motivated by anti-Catholic bigotry. And I am very offended by that, especially after centuries of Catholic open-mindedness and tolerance.

    I wonder why No Man and others still refer to these child rapes as “molestation.” It suggests that the problem was just some undue touching and groping. Please. Read the statements. In the vast majority of these cases, Catholic priests RAPED CHILDREN. I am not being fanatatical. They were every bit as much child rapes as the sicko in Lousianna whose sentence the the Supreme Court just commuted from death to life. He just did not wear black clothes.

    Hatred? Hell, yes. I hate people who rape kids. I don’t care what religion they belong to. And I don’t invent cowardly euphemisms like “molestation” or “abuse” to excuse it.

    Hail, Mary, please forgive these child rapists. And forgive those who are willing to give the death penalty to the laity, but a lesser sentence to the clergy.

  28. Anonymous says:

    Actually — the Uniform Code of Military Justice has always had the death penalty for rape.

    Two years ago, Congress changed the Uniform Code of Military Justice eliminating the language concerning the death penalty, and simply provided for court marshal. The UCMJ currently provides:

    (b) Rape of a child. Any person subject to this chapter [10 USCS §§ 801 et seq.] who–
    (1) engages in a sexual act with a child who has not attained the age of 12 years; or
    (2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;
    is guilty of rape of a child and shall be punished as a court martial may direct.

    From 1992 through 2005, the provision was:

    (a) Any person subject to this chapter [10 USCS §§ 801 et seq.] who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

    To say that the death penalty has always existed in the military for some crimes is one thing; to say that Congress has recently expanded the death penalty to a new arena is incorrect.

    Ultimately, I’m not certain of all the aggravating factors which may be used in prompting a death sentence, but they probably include rape during military engagement. I can see various different rationales that the military might have for retaining capital punishment in such circumstances; on the other hand, I think there are strong policy grounds for not exposing soldiers on the battleground to capital punishment based upon allegations of rape. Our soldiers have enough to worry about, without being wrongfully accused of raping kids in Iraq.

  29. Anonymous says:

    It amazes me that the parties and the Supreme Court missed this. Thank you for pointing this out.

  30. TerryKidd says:

    An interesting thought, but, as has been alluded to by a couple of responders, is the military a jurisdiction? Most actions against the military would have to be authorized under the federal branch, so why is the quid pro quo to be suddenly more lenient when it comes to considering military jurisprudence as a primary source, legal research speaking?
    An amazing approach all the same though. I can’t think of any case that mentions military jurisprudence, not even international law, on a regular basis.

  31. Elle says:

    T.T. Thomas (Fri Jul 04, 01:34:00 AM EDT): See

    I do not think the first sentence of the last paragraph of the July 3 NY Times article (citing the Justice Department statement) is a fair rendition of Loving v. United States (1996). SCOTUS and other courts have long recognized the special circumstances under which military justice often must operate. Hence historically, while state laws have often been abolished instantly subsequent to a SCOTUS constitutional decision, by contrast the relevant parts of the UCMJ are not thrown out instantly. Instead, both SCOTUS and U.S. military courts wait until a specific military person brings a constitutional challenge.

    I remain uncertain as to whether this was a mistake. It could be the media misunderstanding the interaction between civilian and military law and manufacturing “news” from attorney and Marine Corps Reservist Colonel Sullivan’s interesting post.

  32. jayherron says:

    Death may be easier than severe punishment…I am an adult male Military Sexual Assaut survivor (MST) living with PTSD from the events that changed my life 38 years ago. I was 18 years old-and yet,trauma still exists with in my soul.
    My State of Florida just a few days ago executed a rapist-who stole the life of an 11 year old boy after he raped and tortured the child.
    We also house John Couie [sic] on death row-he raped and buried alive a 12 year old girl.
    Even at my age back in 1970 I express the pain and the fear-the impact of a fist on my face,the entire scene relives day after day. What a child must feel?
    I can’t say what protecting a child rapist on death row will do. He will be private-his or her own cell,always seperated from the rest of the prison.Safe-at least for the time it takes justice to serve itself-Floridas recent execution was many years in the waiting.
    If it correct that the inner society of a prison hates the convict that harms the children-give those people life with out parole and let the nature of the society with in those walls serve justice.The convicts will serve it for us.
    Those who sit on the Supreme Court can not even imagine what it is like to endure the cruelty of this crime-I wish many times that my attackers had finished the job and killed me,the pain and loss is so hard to endure.
    What a child must be thinking?

  33. Anonymous says:

    To answer your question about why the Court missed it seems fairly simple. It is buried in an appropriations bill for military spending around in 2006 (when Democrats took control of the house). The Dems were interested in imposing timetables and ensuring that they weren’t seen as supporting the war, while the Repubs were busy ensuring there were no strings attached to the funding and that they appeared pro-war. It seems that during debates no one talked about the death penalty provision. It was largely overlooked.

    In any case, I’m not sure the statute is relevant. The military is the only jurisdiction that has kept the death penalty for adult rape. It seems that the applicability of the 8th amendment to military imposition of death penalty is untested. As its relationship is uncertain anyway, there seems to be no need to examine the statute to look for a national consensus. The military is apart from the U.S. in terms of justice. I’m under the impression that there are loads of procedures and punishments in a martial court that are not part of a national consensus for criminal justice. Would it then be improper to consult the military for this consensus?

  34. FUJI CHALLENGE 4 in 24 says:

    Can you please send this link to everyone you know.

    A group of military guys located in Yokosuka-Japan, are planning to climb Mt. Fuji 4 times in 24 hours.

    They are accepting donations as a good cause which 50% will go to a USA charity, and 50% will go to a Japanese Charity.

    Please send this out to all of your friends and family so they are made aware of the good things sailors are doing to help their community.

  35. Rechtsanwalt says:


    To say that the death penalty has always existed in the military for some crimes is one thing; to say that Congress has recently expanded the death penalty to a new arena is incorrect.

  36. Anwalt für Arbeitsrecht says:


    I think death penalty against the rape of children will be a better decision to stop such incidents if this is implemented successfully.

  37. Anwalt für Erbrecht says:


    I think they will be right if they could make the decision here regarding to death penalty and child rape. The Death penalty will surly put some good effects to stop this violation and to stop the child rape.
    I think they should bravely take this decision here and put their best in this particular case.

  38. Music says:

    What do you mean?

  39. USpace says:

    Child rapists don’t deserve the mercy of Death Row and a state execution, they deserve Life in Prison without parole and special protections. This way the other inmates will have many chances to gang-rape the scum every day, and then torture the vermin to death when they are sick of him.
    At least the Supremes finally got one right with the DC Gun Ban issue. Hopefully, knowing that more homes may have guns, more raping and home-invading monkeys will cease in this behavior or be blown away as they well deserve. The world will be MUCH better with more of this scum dead.
    absurd thought –
    God of the Universe feels
    sorry for child rapists

    when they are murdered
    in cold blood by other thugs

    absurd thought –
    God of the Universe says
    don’t KILL the raping monkeys

    even if they prefer death
    over life in prison

    absurd thought –
    God of the Universe says
    you may not defend yourself

    guns are for criminals
    just hope police show in time

    absurd thought –
    God of the Universe says
    prosecute citizens

    when they kill home invaders
    threatening their families

    absurd thought –
    God of the Universe thinks
    women shouldn’t carry guns

    their attackers and rapists
    don’t deserve their brains blown out

    Philosophy of Liberty Cartoon
    Child Rapists Deserve Violent Death in Prison
    Help Halt Terrorism Today!


  40. Stephen Aslett says:

    I have nothing substantive to contribute to the discussion about the military justice system or the death penalty for child rape.

    Instead, I’m posting this comment in the hopes that, if rehearing is granted in Kennedy v. Louisiana, the Supreme Court will cite this website in its opinion. With luck, this page and the attached comments–including this one with my name–will be forever enshrined in the U.S. Reports in an appendix to the Court’s opinion. And that would be cool.

  41. Jeffrey S. Berman says:

    I seriously doubt that official reporters would pick up more than the original entry.

    That being said, in the interest of starting a snowball effect, I will second Stephen Aslett’s comment and (hopefully) forever attach my name to the annals of SCOTUS history.

  42. minimaxim says:

    god save the queen


  43. lawyer information says:

    This is a great lawyer information although I do think that death penalty sounds wrong. True, they should be punished but not in this way since people can change. I know that the crime that they commit is unforgivable seeing that the child can undergo emotional and psychological illnesses due to the harsh experience.