The Military Judges’ Benchbook, Dep’t of the Army Pamphlet 27-9, has been updated to address the revision to Article 120 and the new Articles 120b and 120c, as Zack discussed here. The new Article 120 and 120b Benchbook provisions each includes an odd discussion of the death penalty.
As we previously discussed, the new new Article 120b is, without serious question, not a capital offense. Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.” Article 120b doesn’t authorize death as a punishment; rather, it provides that someone who “is guilty of rape of a child . . . shall be punished as a court-martial may direct.” That allows the President, acting pursuant to Article 56, to cap the sentence at anything up to and including confinement for life without eligibility for parole. But it doesn’t authorize a death sentence. So what on earth does this “Note” in the Benchbook’s discussion of Article 120b (linked here) mean?:
NOTE 2: Death sentence. The plurality opinion in Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed. RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities. RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.
The death penalty isn’t authorized for any violation of Article 120b, which applies only to offenses committed on or after 28 June 2012. And the new instruction including the note on the death sentence is to be used “for offenses occurring on or after 28 June 2012.”
Contrary to what the note seems to imply, the President has not authorized and cannot authorize death for a post-27 June 2012 rape committed in a war zone or occupied territory since Congress hasn’t authorized death for such rapes. Nor can the President authorize death for a post-27 June 2012 rape of a child or a rape accompanied by maiming or an attempt to kill since Congress hasn’t authorized death for such rapes.
It’s also strange that the note cites Coker v. Georgia but doesn’t mention the more recent SCOTUS decision in Kennedy v. Louisiana, 554 U.S. 407 (2008), or the follow-on opinion regarding denial of reconsideration, in which a majority of Supreme Court Justices address the issue of whether death can be an authorized sentence for rape of a child in the military justice system. Kennedy v. Louisiana, 129 S.Ct. 1 (2008) (statement of Kennedy, J,., joined by Stevens, Souter, Ginsburg, and Breyer, JJ., respecting denial of certiorari).
The Benchbook’s discussion of the new new Article 120 (linked here) includes a note identical to Article 120b’s note 2. But once again, Article 120 doesn’t authorize capital punishment; rather, it provides that someone who “is guilty of rape . . . shall be punished as a court-martial may direct.” While the 2006 legislation establishing the previous version of Article 120 included an authorization for death as a punishment for either rape or rape of a child, see Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263, the legislation creating the 2012 version of Article 120 contained no such language.
So the revised Benchbook’s discussion of the “death sentence” for Articles 120 and 120b is outdated confusing surplusage. The Benchbook’s drafters should remove it when they make the next revision, which will probably come when the President adopts maximum punishments for the new new Article 120 and for the offenses established by Articles 120b and 120c.