The NYT on the UCMJ
In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.
In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.
I have long suspected that non-military lawyers and legal commenters essentially ignore U.S. military law. In the wake of the 2004 decision in Blakely v. Washington, for example, there were several articles discussing the feasibility of jury sentencing, but I didn’t see any mention of the fact that sentences at courts-martial are voted on by the military equivalent of a jury. More recently, I have been working on a project about the historical development of the crime of burglary in the United States. None of the law review articles I’ve read for the project mention that, unlike all other U.S. jurisdictions, the UCMJ retains the old common law definitions of burglary and nighttime.
One explanation for the scant attention paid to U.S. military law may be the difficulty associated with research. Title 10 of the U.S. Code is devoted to military law, but many relevant provisions are codified in the Manual for Courts-Martial rather than in the code. And while the Manual is available on Westlaw, I had better success performing my searches using a complete copy of the Manual I found online — in fact, the relevant provision I was looking for didn’t appear in my WL search. So for those of you who are conducting a 50 state survey — whether for the Court or for a law review article — here is a copy of the Manual for Courts-Martial. Of course, some might say that non-military briefs and law review articles need not address military law because it is sui generis. But so are the laws of the various states, to some extent.