January 26, 2021

Unanimous Supreme Court Overturns Military Court Ruling on “Crimes punishable by death”

On October 13, 2020, the Court heard arguments in United States v. Briggs, which raised the question of whether rape could be categorized as a crime “punishable by death” under the Uniform Code of Military Justice (UCMJ), even though existing precedent prohibits the imposition of the death penalty for non-homicide offenses outside of the military. In an earlier decision, the U.S. Court of Appeals for the Armed Forces found that such offenses could not be death-penalty eligible, and therefore should have been subject to a five-year limitations period. By a vote of 8-0, the U.S. Supreme Court unanimously reversed.

At the telephonic Supreme Court oral argument, both sides asserted that they should prevail under the UCMJ and that the Court would not have to reach the broader question of whether the relevant Eighth Amendment precedent—Coker v. Georgia, which in 1977 prohibited application of the death penalty to a crime involving rape but not homicide, and Kennedy v. Louisiana, which extended Coker in 2008 by declining to make an exception for child rape—applies to military cases. University of Texas law professor Stephen Vladeck argued for the three respondents that allowing military rape to be punishable by death would constitute cruel and unusual punishment, prohibited by Article 55 of the UCMJ. While Acting Solicitor General Jeffrey Wall, arguing for the DOJ, claimed there is “daylight between the meaning of the Eighth Amendment’s cruel and unusual punishment clause and Article 55's version,” the respondents pointed out that, prior to Coker, the Court of Appeals for the Armed Forces had interpreted Article 55 as providing as much protection against cruel and unusual punishment as does the Eighth Amendment, and Congress has never legislated otherwise. The Government also argued that the Court has never decided whether the Eighth Amendment applies to courts-martial and that applying Coker and Kennedy in a military setting would be inappropriate, as those cases were decided within the civilian context. In addition, the Government argued that even if the Court decides that the prohibition against capital punishment for non-homicide offenses applies to the military, the respondents’ convictions should still stand because the decision to classify rape as an offense “punishable by death” was based primarily on the severity of the offense, which is not contingent upon whether the punishment can actually be carried out.

On December 10, Justice Alito wrote for a unanimous eight-member Court—with Justice Barrett not participating in the decision as she was not yet seated for the oral argument—that, in the context of the UCMJ, the Government had the “more persuasive” interpretation. The Court found that, even in light of the Article 55 prohibition on cruel and unusual punishment, the list of death-eligible crimes in Article 120 made it the most reasonable, internally cohesive source for determining whether rape was death-eligible for the purposes of Article 43. The Court also agreed with the Government’s distinction between military and civilian Eighth Amendment application, noting that statutes of limitation are traditionally intended to provide prosecutorial clarity, but that Congress would have nonsensically intended the opposite if the limitations period here was dependent on the unsettled question of the application of Coker to the military. Speaking to Congressional intent, the Court further explained that factors other than Eighth Amendment considerations typically motivate the lawmaking process, such as considerations of the need for a long limitations period for certain offenses due to, for example, potential victim reluctance to come forward. The Court therefore denied that Congress had intended to tie the statute of limitations to Eighth Amendment analysis.

The decision is relevant only to prosecutions falling between 1986, when the UCMJ was amended to include rape as a death-eligible offense, and 2006, when Congress amended the UCMJ to explicitly include rape among the military crimes for which there is no statute of limitations, regardless of whether it is “punishable by death.”