The Eighth Amendment and Statutes of Limitations

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system.

Today’s cases, United States v. Briggs, No. 19-108 and United States v. Collins, No. 19-184, involve relatively recent military prosecutions for long ago rapes. The offenses at issue were committed as far back as 1998.  The Uniform Code of Military Justice at the time had a general statute of limitations but excepted from it “absence without leave or missing movement in time of war, or … any offense punishable by death ….” The latter exception was fairly common in old statutes. It was also fairly common, before Furman v. Georgia, for a number of offenses other than murder to be punishable by death even though the death penalty was rare for those other crimes. The UCMJ also provided for death as a possible punishment for rape.

From 1972 to the present, the Supreme Court has invented a large body of procedural and substantive restrictions on capital punishment on the pretense of interpreting the Eighth Amendment’s Cruel and Unusual Punishment Clause. (See my 2019 law review article for the full explanation.) Justice Scalia aptly called this body of case law “the fog of confusion that is our annually improvised Eighth Amendment, ‘death is different’ jurisprudence.”

One element of this body of case law is limiting capital punishment to conduct that kills the victim. The Supreme Court forbade capital punishment for rape of an adult woman in Coker v. Georgia in 1977 and extended that rule to the rape of children in Kennedy v. Louisiana in 2008.

The extension of this rule into crimes related to national security has not been tested. Would capital punishment be constitutional for treason, espionage, or sabotage if the defendant’s actions did not demonstrably kill anyone? The Supreme Court has also never decided if it applies to the military.

The application of this body of law to military justice was raised but not decided by the Supreme Court case of Loving v. United States (1996). That case involved the question of whether the changes in sentencing procedure needed to comply with the procedural aspects of the “fog of confusion” could be made, for military justice, by a presidential order rather than a statute. CJLF briefed, but the Solicitor General did not, the argument that the whole apparatus does not apply to the military at all. The reasons that motivated the Court to adopt the numerous and dubiously valid rules of Furman v. Georgia and its progeny do not apply, and hence those rules should not apply. The Court decided the case in favor of the government after noting that it was merely assuming that the Furman rules apply because the government did not challenge that application. See part III of the opinion, first paragraph. The question is still open.

So what does “punishable by death” mean in the UCMJ’s statute of limitations exception? If it refers to all crimes for which the UCMJ allows death as a possible punishment, regardless of whether that application would be constitutional, then the exception applies to the cases before the Court without deciding whether Coker and Kennedy apply to the military. That is, in my view, the correct resolution of this case. Congress wanted to identify a group of exceptionally serious crimes for which there would be no statute of limitations, and the crimes it had made capital was a convenient way to define that category. A decision along these lines would be consistent with the principle that the Court will not decide constitutional questions if there is a nonconstitutional route to decision, as the Court did in Loving.

The transcript and audio of today’s argument are available on the Court’s website. I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.