The Article 120 amendments: is death a statutorily authorized punishment for rapes occurring on or after 28 June 2012? (I think not)
Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012. That decision has particular resonance in light of the Supreme Court’s opinion in Kennedy v. Louisiana and its aftermath.
In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held that death isn’t a constitutionally permissible punishment for rape of a child. Then, in an episode in which CAAFlog played a role, the Supreme Court revisited its decision because it had overlooked that the National Defense Authorization Act for Fiscal Year 2006 had authorized the death penalty for rape of a child, belying the opinion’s claim that there was no federal statute allowing rape of a child to be punished by death. As a result, the Supremes modified the original Kennedy opinion while the five justices in the majority issued a statement reserving judgment on the constitutionality of death for rape of a child as a military offense:
[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U.S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id. at 595-596 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman, but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U.S. 782, 789-793 (1982); Tison v. Arizona, 481 U.S. 137, 152-154 (1987). This case, too, involves the application of the Eighth Amendment to civilian law; and so we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U.S. 748, 755 (1996).
That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context. The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. Until the petition for rehearing, none of the briefs or submissions filed by the parties or the amici in this case cited or discussed the UCMJ provisions.
129 S.Ct. 1, 2-3 (2008) (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing). .
Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.” The “rape of a child” UCMJ provision that Congress adopted in 2006, along with an interim authorization for the death penalty, was Article 120(b). The National Defense Authorization Act for Fiscal Year 2012 “repealed” Article 120(b). NDAA for FY 2012, § 541(a)(2). And it enacted a new, non-capital child rape article: Article 120b, which provides that “[a]ny person subject to this chapter who . . . is guilty of rape of a child . . . shall be punished as a court-martial may direct.” Death is authorized by neither the new Article 120b nor a non-codified portion of the bill, as was the case with the 2006 Article 120 amendments. See Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263.
Despite Congress’s use of the word “repealed,” it isn’t quite accurate to state that Congress repealed the death penalty as an authorized punishment for rape of a child. To the extent that rape of a child as defined by Article 120(b) of the 2006 version of Article 120 was punishable by death last week (an issue discussed below), even after 28 June 2012, death will remain an authorized punishment for Article 120(b) violations committed between 1 October 2007 and 27 June 2011. Nevertheless, it is still significant that Congress would choose not to authorize the death penalty for violations of the new Article 120b in light of a majority of Supreme Court justices’ observation in the statement respecting denial of rehearing in Kennedy that “we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases.” Kennedy, 129 S. Ct. at 2. In his statement respecting denial of rehearing in Kennedy, Justice Scalia (joined by Chief Justice Roberts) contended that the 2006 statute’s authorization of death for rape of a child under Article 120(b) “utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference. As noted in the letter from Members of Congress, the bill providing the death penalty for child rape passed the Senate 95-0; it passed the House 374-41, with the votes of a majority of each State’s delegation; and was signed by the President.” Id. at 3. Of course, the defense authorization acts for both FY 2006 and FY 2012 dealt with a large number of issues. It is questionable whether most Members of Congress and/or the President even knew of their death penalty provisions. Indeed, President Obama’s act of signing the FY 21012 act into law is particularly interesting in light of his criticisms of the Supreme Court for the original Kennedy decision. President Obama is pro-death penalty, having written in his 2006 book The Audacity of Hope: “I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.” Barack Obama, The Audacity of Hope 58 (2006). After the Supreme Court announced its original Kennedy opinion, then-Senator and Presidential Candidate Barack Obama told reporters:
I disagree with the decision; I have said repeatedly that I think the death penalty should be applied in very narrow circumstance for the most egregious of crimes. I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision under narrow limited well defined circumstance the death penalty is at least potentially applicable.
While death is clearly not an authorized punishment for a violation of Article 120b, it’s a closer call whether death remains an authorized punishment for violations of Article 120(a), though I believe the better argument is that it is not.
Let’s review the bidding. Before the 2006 version of Article 120 took effect for offenses on or after 1 October 2007, Article 120 authorized death as a penalty for rape. The 1 October 2007 removed that authorization from the UCMJ itself. The five justices in the Kennedy majority noted that the absence of language in the 2006 version of Article 120 permitting the death penalty calls into question whether a court-martial could adjudge such a sentence in light of Article 18’s provision that a general court-martial has jurisdiction to impose a death sentence only “when specifically authorized by this chapter” See Kennedy, 129 S. Ct. at 2 (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing). Instead of authorizing death in a provision that would become part of chapter 47 of title 10 of the United States Code, the 2006 authorization act provided:
(b) INTERIM MAXIMUM PUNISHMENTS.—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:(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.
a) Rape- Any person subject to this chapter who commits a sexual act upon another person by–(1) using unlawful force against that other person;(2) using force causing or likely to cause death or grievous bodily harm to any person;(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;(4) first rendering that other person unconscious; or(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;is guilty of rape and shall be punished as a court-martial may direct.