Professor Yung of John Marshall Law School — the host of the Sex Crimes blog — has written an interesting analysis of Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), and the state of Louisiana’s and Acting SG’s efforts to have the Supremes revisit the opinion. Here’s a link to his blog’s discussion of his analysis. The blog post includes a link that will allow you to click through to the article itself. (Here’s a link that may or may not lead directly to the article; I had to register with SSRN before I could get it to work.)
(For those of you following Kennedy closely, Professor Yung also provides a Kennedy v. Louisiana resource page, available here.)
Professor Yung makes the interesting point that Kennedy v. Louisiana‘s exclusion of the military justice system from its survey of U.S. criminal justice systems was consistent with every previous Supreme Court opinion using a nose-counting approach to analyzing the Eighth Amendment’s Cruel and Unusual Punishment Clause. He writes: “The United States Supreme Court has issued twenty-eight opinions, including Kennedy, that have utilized the evolving standards of decency approach in analyzing claims under the Cruel and Unusual Punishment Clause of the Eighth Amendment. While several Court opinions mentioned the military or the UCMJ, not one opinion considered the military’s criminal code as part of the objective indicia in determining the national consensus.” (footnote omitted). And, he emphasizes, that includes Coker v. Georgia, 433 U.S. 584 (1976), the Supremes’ previous Eighth Amendment analysis of rape as a capital offense.
Professor Yung goes on to argue that the UCMJ should be excluded from assessments of evolving standards of decency because military justice is sui generis. He argues: “When Congress enacts a law to modify the UCMJ, it only reflects a national consensus of the legitimacy of such a modification in the military — not to society at large.”
He concludes that while critics of the Kennedy decision might challenge the entire nose-counting approach to interpreting the Eighth Amendment, “to use the omission of the UCMJ amendment as a Trojan horse for the larger substantive argument is simply unsupportable as a matter of law, history, and practice.”