The State’s petition asked the Supreme Court to reconsider its decision in light of a law that the parties failed to bring to the Court’s attention earlier. According to the majority opinion, “Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence . . . but it did not do the same for child rape or abuse.” The State challenged this claim and suggested that Congress authorized the death penalty under military law for child rape when it passed the National Defense Authorization Act (NDAA) in 2006. The petition argued that Congress’s NDAA amendments to the Uniform Code of Military Justice (UCMJ) negated the finding that there is a national consensus against the death penalty for this crime.

The petition thus raised a novel question of whether military law influences the Supreme Court’s Eighth Amendment analysis of “evolving standards of decency.” Ultimately, the Court determined that military law does not influence this analysis. It did not address the wider uncertainties surrounding military law and the Eighth Amendment. The Justices slightly modified both the majority and dissenting opinions in response to the petition. The majority opinion now contains a footnote indicating that “the military penalty does not affect our reasoning or conclusions.” The dissenting opinion now contains a footnote observing that the UCMJ permits the death penalty for child rape.

The Legal Basis of the Court’s Decision to Reject the Petition for Rehearing

The Supreme Court’s decision denying rehearing is legally sound for three reasons: (a) the recent change in the military law did not alter the punishments available for the crime of child rape under the UCMJ; (b) the Supreme Court has never considered military law when engaging in Eighth Amendment evolving standards of decency analysis of civilian law; and (c) military law simply does not reflect the national consensus on the legitimacy of criminal sanctions in the civilian context.

Every fiscal year, Congress passes a law that sets forth the budget for the Department of Defense. Buried in the middle of the 2006 NDAA were amendments to the UCMJ articles that criminalized rape. The law separated the crime of “rape of a child” from “rape,” and made clear that coercion is not an element of rape of a child when the victim is under the age of 12.

The NDAA did not itself authorize new penalties; military law has long allowed the death penalty for the crime of rape. Instead of specifically authorizing the death penalty, Congress established “interim maximum punishments” that were in effect “[u]ntil the President otherwise provides.” These included the death penalty for both rape and rape of a child. The President later passed an Executive Order that adopted these punishments verbatim. The NDAA merely made punishments already available “interim maximums” and punted final consideration to the President.

In determining whether a punishment is cruel and unusual, the Supreme Court considers whether it comports with evolving standards of decency. The inquiry requires the Court to identify objective indicia and decide whether there exists a national consensus on use of the punishment in question. Before the State submitted its petition for rehearing, it appears that no party had ever suggested that the Court refer to military law when deciding a challenge to a civilian law authorizing the death penalty. In fact, the Supreme Court has never independently consulted military law to determine national consensus when handling these cases because military law is not the relevant federal law.

Furthermore, the status of military law has no bearing on the national consensus concerning the death penalty for non-homicide offenses. The State’s position seemed insensitive to the distinctive role the military plays in protecting our society. The federal government has determined that special restrictions on constitutional rights are necessary to enable the military to fulfill its mission. A number of military policies—including the criminalization of consensual adult sodomy, the exclusion of homosexuals from service, and the mandatory death penalty for the non-homicide crime of spying—draw support from the idea that military effectiveness requires the elasticity of some constitutional principles. While one is free to question the wisdom of these policies, one must concede that military law is no indication of the national consensus.

Kennedy’s Implications for the Eighth Amendment’s Future

The deeper question remains an open one: how should the Supreme Court’s rulings on punishments it finds cruel and unusual apply in the military context? Precedent indicates that, though military law does not reflect the national consensus, the national consensus should be reflected in military law, “at least, where there is no [legitimate] purpose unique to the military mission that would be served by allowing the death penalty for [an] offense.” For example, some argue that a military official convicted of child rape deserves the same punishment as his civilian counterpart. The Supreme Court will have to carefully consider, however, whether the death penalty is an appropriate punishment if the crime obstructs military goals or creates a unique harm when it is done by someone cloaked with the authority of the State’s military.

The decision’s lasting legacy shall emerge from the Court’s “independent judgment” analysis. The majority stated that it struck down Louisiana’s law because of “both [the] consensus and our own independent judgment.” In his statement respecting denial of rehearing, Justice Scalia contended that the majority opinion turned only on the independent judgment of the Court; “there is no reason to believe that absence of a national consensus would provoke second thoughts.”

The Court’s response to the State’s petition may support Scalia’s conclusion. The petition squarely asked whether the Court’s independent judgment could serve as a stand-alone justification. The majority tweaked its opinion with a footnote, but did not address this question. This silence bolsters Scalia’s claim, despite the majority’s insistence that the national consensus “is entitled to great weight.”

Anti-death penalty advocates are now surely encouraged to pressure the Court to declare inhumane laws unconstitutional without the typical inquiry into the number of state legislatures that have abandoned the practice. The opportunity to appeal to the Court’s independent judgment provides great hope for those seeking to defeat the death penalty. Indeed, as Justice Stevens’ concurring opinion in Baze v. Rees foreshadows, the moment a plurality of the Court will find the arbitrary application of the death penalty cruel and unusual—without tallying state laws—is now foreseeable.

Conclusion

The Supreme Court’s order denying rehearing clarified the boundaries between military and civilian law and rejected the claim that military law reflects the national consensus. More significantly, the Kennedy decision could mean the beginning of the end for the death penalty. Though lawyers do not yet know if the Court’s independent judgment can separately sustain a decision, pressure upon the Court to so hold will mount. In Kennedy, the Court confessed that it is “still in search of a unifying principle” in capital cases. That search may not last forever; it seems it is only a matter of time before fairness, decency, and independent judgment doom the death penalty.

Bidish Sarma graduated from Yale Law School in 2008 and is currently serving as a fellow for the Capital Appeals Project in New Orleans, Louisiana.

Patrick Kennedy is a client of the Capital Appeals Project. The views expressed by the author do not necessarily represent those of the Capital Appeals Project.

Preferred Citation: Bidish Sarma, Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future, 118 Yale L.J. Pocket Part 55 (2008), http://thepocketpart.org/2008/10/14/sarma.html.