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).