United States v. Briggs

DOES THE FIVE-YEAR STATUTE OF LIMITATIONS APPLY?

Petitioner the United States argues that because rape was a crime punishable by death under the UCMJ at the time of Briggs’ offense, and because the UCMJ did not then impose a statute of limitations on crimes punishable by death, Briggs may be tried for rape at any time. Brief for Petitioner, United States at 25. The United States asserts that the plain language of former Article 43(a) of the UCMJ, which stated that a person charged “with any offense punishable by death, may be tried and punished at any time without limitation,” and former Article 120(a), which provided that “rape . . . shall be punished by death or such other punishment as a court-martial may direct,” reflected a clear congressional intent that certain crimes, such as rape, are serious enough to be prosecuted without any time limitation. Id. at 26–27. According to the United States, the enactment of a statute of limitations period for certain crimes is “an exclusively legislative judgment” that is not open to judicial interpretation when the legislative intent is clear, as it is here. Id. at 25–26. The United States furthermore argues that the applicability of former Article 43(a) did not depend on the constitutionality of capital punishment, as Congress merely referred to crimes that were “punishable by death” as a way of identifying crimes sufficiently serious to be tried at any time without having to maintain a specific list of such offenses. Id. 27–28. The United States cites a 1986 Senate Report that claimed the “punishable by death” language was borrowed from similar statutory text in the federal criminal code, which itself had been interpreted as merely referring to a maximum statutory penalty and not the constitutionality of the death penalty. Id. at 29. It is irrelevant that the death penalty was found unconstitutional for civilians convicted of rape, the United States adds, because the UCMJ applies only to members of the military who are convicted of rape. Id. at 30–31.

Respondent Briggs counters that former Article 43(a) authorized an unlimited prosecution period only for offenses that were “punishable by death.” Brief for Respondents, Briggs et al. at 16. Because the Eighth Amendment bars the use of capital punishment for rape, continues Briggs, the general five-year statute of limitations must apply to cases of military rape. Id. Briggs asserts that the language “punishable by death” refers to offenses that can actually be punished by death and not offenses for which Congress “has merely authorized a particular penalty.” Id. at 18–19. For support, Briggs cites a 1939 letter from former Attorney General Frank Murphy in which Mr. Murphy explained that the phrase “punishable by death,” which was later adopted into the UCMJ, refers to “offense[s] for which the death penalty may be imposed.” Id. at 20. Briggs thus concludes that interpreting “punishable by death” to include offenses which can never be punished by death, such as rape, is illogical. Id. at 22. Briggs also contends that the United States’ argument that “punishable by death” includes offenses for which Congress has merely authorized the death penalty is unsupported by case law, as the United States fails to cite a single case where the death penalty was not actually at least a potential punishment for the underlying offense. Id. at 22–24. Briggs additionally claims that even if former Article 43(a) is ambiguous, the rule of lenity holds that ambiguous statutory language should be interpreted in favor of Briggs, the defendant. Id. at 24–25. Briggs also argues that the United States’ use of the 1986 Senate Report to interpret “punishable by death” as referring to “serious offenses” is misleading because (1) the 1986 Report is subsequent legislative history to the more directly relevant 1939 legislative history, (2) is inconsistent with the full body of the 1986 Report, and (3) ignores the limits imposed by Article 55 of the UCMJ, which prohibits courts-martial from imposing any “cruel or unusual punishment.” Id. at 26–28, 30.

DOES THE EIGHTH AMENDMENT PROHIBIT CAPITAL PUNISHMENT FOR MILITARY RAPE?

The United States argues that even if the statute of limitations for military rape depends on a constitutional analysis, capital punishment for military rape is constitutional. Brief for Petitioner at 31. The United States contends that the Constitution gives Congress the power to make rules and regulations for the military forces, and that courts have given wide deference to this plenary authority. Id. at 31–32. According to the United States, this deference is especially strong regarding Congress’s selection of disciplinary measures because there are meaningful differences between military and civilian contexts. Id. at 33. The United States further argues that punishing military rape with the death penalty, which has been military practice for over one hundred and fifty years, reflects the unique harms that military rape presents for the armed services’ reputation, morale, and combat effectiveness. Id. at 34–35. The differences between military rape and civilian rape, the United States goes on, justify the legality of capital punishment for military rape. Id. at 35–37. For example, the United States explains, victims of military rape are pressured to keep silent and, due to the nature of their deployment, may be subject to continued “close-quarters exposure” to their rapist. Id. at 37. The United States also argues that UCMJ Article 55, which prohibits certain types of punishments such as flogging, branding, “or any other cruel or unusual punishment,” does not forbid capital punishment. Id. at 37–38. Because former Article 120(a) expressly authorized capital punishment, the United States reasons, it would be illogical if Article 55 operated to forbid a punishment that was specifically authorized elsewhere in the UCMJ. Id. at 38. The United States further asserts that just because Article 55 uses language similar to the Eighth Amendment, that alone does not mean that the same Eighth Amendment protections afforded to civilians are necessarily imported into the UCMJ. Id. at 38–39.

Briggs responds that the Eighth Amendment prohibits punishment of military rape with the death penalty. Brief for Respondents at 31. Briggs contends that the Eighth Amendment’s prohibition of excessive or cruel and unusual punishment means that the death penalty is limited to only the most serious crimes. Id. According to Briggs, the Supreme Court made this clear in Coker v. Georgia when it held that the non-fatal rape of an adult is not a serious enough offense to warrant the death penalty. Id. at 32. Briggs asserts that since Coker was decided in 1977, every military court decision involving rape has followed Coker in recognizing that the Eighth Amendment prohibits punishing rape with the death penalty. Id. at 32–33. While recognizing that “many constitutional rights apply differently” in a military context, Briggs claims that a defendant’s Eighth Amendment rights do not. Id. at 33. Briggs further argues that the Eighth Amendment has been applied to military cases for decades, and that Eighth Amendment jurisprudence now applies to military courts by default unless there is a sufficient “military necessity” to justify not applying an Eighth Amendment protection. Id. at 35–36. In any case, Briggs continues, Congress clearly intended to incorporate Eighth Amendment protections in the UCMJ via the “cruel and unusual punishment” language used in Article 55. Id. at 36. According to Briggs, Article 55’s categorical prohibition on cruel and unusual punishment takes precedence over former Article 120(a)’s express authorization of capital punishment. Id. at 37–38. Briggs also argues that the principle of constitutional avoidance, which states that courts should avoid deciding constitutional questions if there is an alternative way to resolve the dispute, settles the case here. Id. at 39. That military courts have consistently incorporated the Eighth Amendment into Article 55, claims Briggs, is reason enough to dispose of the case and reject the United States’ alternative interpretation that the Eighth Amendment’s prohibition of capital punishment extends to military rape. Id.

RETROACTIVE APPLICATION OF CURRENT ARTICLE 43

The United States argues that, regardless of whether Briggs can be prosecuted under former Article 43(a), he can be prosecuted under current version of Article 43(a). Brief for Petitioner at 39–40. As the United States explains, Congress amended Article 43(a) in 2006, one year after the rape at issue here, such that Article 43(a) now expressly provides that there is no limitations period for prosecuting rape. Id. at 40. While recognizing that there is generally a presumption against applying legislation retroactively, the United States argues that that presumption does not apply in Briggs’ case. Id. According to the United States, the presumption against retroactive legislation is principled on the idea that individuals should have “fair notice” of what the law is. Id. The United States contends that Briggs had such notice here, because even at the time of the rape in 2005 the UCMJ did not contain a limitations period for rape. Id. at 41. Therefore, the United States argues, failing to apply the amendment retroactively would relieve Briggs of his obligation to be aware of the law and to “conform his conduct accordingly.” Id.

In response, Briggs asserts that the 2006 amendment to Article 43(a) does not apply retroactively. Brief for Respondents at 40. Briggs argues that, unless there is clear evidence that Congress intended otherwise, legislation applies only prospectively. Id. at 41. According to Briggs, there is no indication here that Congress intended for the 2006 amendment to Article 43(a) to apply retroactively. Id. at 42. For one, explains Briggs, the amendment did not specify an effective date, which at the most indicates that Congress was silent regarding when the amendment would apply. Id. Briggs also asserts that, had Congress wanted Article 43(a) to apply retroactively, it could easily have included clear and unambiguous language to that effect. Id. Briggs furthermore claims that that applying the 2006 amendment retroactively would produce an intolerable “retroactive effect,” meaning that the difference between applying the amendment retroactively and applying it prospectively is the difference between whether Briggs could be prosecuted at all. Id. at 46. Such an application, Briggs argues, would impermissibly impact his “substantive rights” connected to conduct before the amendment was enacted. Id.