order forty three of the you see m j that an offense punishable by death me prosecuted at any time congress was referring to the punishment it had provided for in the very same code responded say the congress was up to something far more novel it was importing the th amendment proportionality standard into the otherwise simple and predictable calculation of the time for bringing a prosecution in at least three ways the text says otherwise earth the penalty and limitations provisions and prosecutable at any time in article forty three dollars all of the statutory pieces fit cleanly together rd congress borrowed the language of the military when the nation provision from the general capital limitations provision eighteen u eighty one where the language dates back to nine hundred and thirty nine for the past eighty years the executive branch and every particle for the court to consider the phrase question will by death in any contract as read it for further to the statutory punishment that holds soil came with in article forty three for those reasons the courts have reversed on the statutory question without reaching the constitutional or retroactivity question general you've been talking what congress did but of course the issue comes from what the court did and i understand that the reference to punishable by death was was a way for congress to sort of a shorthand for what we regard as the most serious crimes those are the ones that are not going to have any statute of limitations but the court in kolker seem to say that the most serious crimes that category punishable by death it only include those crimes that have resulted in deaths in the rape camp be classified as among the most serious now why doesn't that determination by the court  affect how we should read the statute in this case the reference in the nd article forty three refers to those punishable by death and those are the constitution if i'm right that tax history precedent also suggest that what congress meant when it's a conditional by death was a reference to the punishment it had picked out in the code and i think everybody agrees that that controls the meaning of the limitations provision regardless of what punishment court martialled actually impose consistent with the constitution and i think if we're right about what the statute means and what congress was referring to there's no need to reach the constitutional question if the court does if the court says well for the st time ever congress looked outside the code to the constitution then yes it's got to tackle the question of whether kolker applies but the courts never applied coper in the military setting it consistently says the constitutional rights apply differently and for reasons that hopefully will get into an argument i think there are good reasons here to believe the coper does not control in the military setting in general has congress referred to a constitutional provision and we've interpreted that as applying only as of the time congress acted rather than as the provision developed i don't have a ready example in mind mr chief justice because of course our basic submission is the congress wasn't looking outside the code to the th amendment it wasn't for the st time ever saying well we'll let the statute of limitations go back and forth between five years  life depending on what courts it was as article eighteen says look into the codes that's has to be authorized by the current authorized in one hundred and twenty so in the limitations provision says punishable by death it's referring only to whether congress had arguing that even if you could not even if you accepted coker for example with respect to the punishment that can be administered would it still apply to the statute of and rd this court the st the congress the judgment on matters of military justice and that's an overlay that was not present in the civilian context in coke or in kennedy would you say the same thing if there was a firm  policy not to administer the death penalty in the military for example that came directly from the president absolutely i would just promise because the honest mission for our frontline position is that when congress that punishable by death it meant the same thing that phrase has always meant for the last eighty years it meant whether it had picked out that punishment in the senate and made it available that's for sure that it thought it was the kind of serious offense to be prosecuted on in time one president might not want to punish was picking out in order to forty three dollars it was picking out its own judgment about whether a punishment was appropriate and should be available on a separate issue do you think there is any daylight between the  any other cruel or unusual punishment if using it is a catch all for certain types of torture which was what the a fundamental was understood at the time that language came into being now subsequently the court has interpreted the th amendment to incorporate a proportionality standard in cases like coker and kennedy as you know but no article fifty five text it's a very separate a very different mean being in the in the u c m standard of decency and i don't think we could perceive that in the context of the military for two reasons one congress has repeatedly authorized it by statute and many presidents have allowed it so it's hard to see the sort of national consensus  the court perceived in cocoa and kennedy and the other is just that i think the goals of the criminal law which the court talked about in those cases things like to deterrence and retribution are served very differently in the military because of them in its military environment the need to maintain trust and discipline need to achieve institutional equality need not to damage foreign relations and the position of the other side just by by the way is that rape can never be punished in the military that's what they need to prevail in this case and i think to say that rape could never be a constitutionally permissible punishment even for let's say a repeated brutal rape of a civilian in a war zone that that just does not strike me as a kind of judgment coker and kennedy were talking about even if maybe some peace time rates couldn't be it seems to me that there is there at least some rapes in the military where you could punish a consistent with the eight and then that and once the court says that then i think even responded if the were right about the statute in the civil context there are a lot of numbers gathered by different groups and there's a very long waiting period eighteen years fifteen years between the time of the conviction and someone actually being executed are there similar to sit just six for the military i don't know if there are just aspire because of course is the pre show the military very rarely pursues the death penalty the last time the military executed someone was nine hundred and sixty one for the rape of a civilian child in occupied austria in the wake of world war two so i think there is you in terms of imposition of the death penalty that that is very rare of course here the prosecutions occurred many years after the offense and i talked to the prosecutors about that and what they say is that there that doesn't affect sort of the quality of the evidence that they can bring forward that these were reliable cases even though they were prosecuted years after the fact and that it's critical to be able to go after these crimes outside of what would otherwise be the five year window in order to make progress on rape and sexual assault in the military it's hard to get women to report their pressures inside the military and they need to be able to prosecute these crimes to continue to get the numbers to go down and the numbers have been going down the part of that is because  very recently they didn't face a statute of limitations so even if they found out about it years after the fact they could still bring a prosecution as long as the evidence was liable thank you justice alito there  could you explain why you think the statutory language is clear enough to overcome those sure justice alito so as you say the st thing i would say is just we don't see any grievously ambiguity here and neither has any article three court that ever history the fact that this phrase hadn't understood meaning in the general criminal context and congress picked up on it so those are all textual can touch tool clues and of course also the fact that article fifty five dollars separately deals with  on what punishment may be imposed so it would be very hard for congress to have obliquely imported it in order forty three when they have a separate article of the code that deals with it so for all those reasons i don't think it's previously ambiguous even if a court disagrees i think constitutional avoidance to break the tie when are these not a great fit because when i talk about the scoop of the criminal prohibition everybody agrees the conduct here was rape and repose seems an odd candidate to since the whole point of article forty three dollars is to make it pros in all of these cases the cap reversed conviction the calf held in each case that under manga hospice petulant patients was five years and not unlimited now to be sure it only revisited that question in daniel's it relied on and daniels and just relied on collins and collins a lot of manga so it is true that they didn't decide the question here they relied on their earlier decision and make a hoss but you grant that you grant those kinds of cases all the time where some court relies on a rule  r mr wall just to be clear i wasn't quite sure i understood your answer to justice thomas the statute of limitations question is separate from the cocoa question isn't it you could have a statute of limitations that is not fixed even if we were to decide that  apply to the military correct we absolutely agree just to sort of honor those are two separate judgement we think congress moves both of them here and even if it's not allowed to impose the death penalty on the constitution but i agree with you the court doesn't need to get their full right on this that's why i thought i wasn't quite sure you went straight into the copra question and i wasn't quite sure whether you meant to answer yes or no to him number  to in compact situations and create great interest great international dispute for example if one soldier attacks another in a combat  so i don't know why or how you have justify the explanation why death is proportionate in that situation when my without parole is especially different when you talk to the prosecutors because it divides up with hoons and units oftentimes in a way that other crimes do not there are but what do i make of the fact it's been decades since they've sought it for premeditated murder in the military but i don't think anyone even responded would say that makes a difference to the constitutional analysis that it's somehow off the table the death penalty for even premeditated murder in the military it is true that they rarely impose it but none of that matters to congress this judgment that the offense is so serious that it should be prosecutable at any time and just to finish my answer to your earlier question it's not just the way it divides tune it's not just the pressures against reporting which are true of rape and sexual assault and less true of other offenses it's also the effect on foreign relations and national security yes an attack inside a war zone on another soldier might be an eerie effect our foreign relations but not nearly so much as the rape  civilian child and i go back to the austrian example in the wake of world war two i think to prevail they've got to say even a rape like that isn't can't be punished with death under under the th amendment and i can't feel what objective measure they would get the the offense punishable by death under the u c m j which is really how you are reading it as if those three words were in the statute and i'm wondering why we should read it like that usually we try not to add words to a statue so if we say any offense punishable by death that would suggest any offense punishable by death under any law not just under the u c m j just regard to see that i have a very different reaction i of law that tells you whether it's punishable or not we just look to the question can you put somebody to death for this you know i have to say just i think that assumes away the problem which is there are two different ways to replenishable got i think if there's much for the other side to say there's a plain meaning understanding since no article three court i never read it that way in the eighty years of may i mean there were six circuit court decisions four different circuits before and entirely different part of the federal code and it just said rape shall not be punished by death under any federal law so what that changed the outcome just potentially it might i mean if congress itself put in a provision saying military rape could not be punished by death then you would have a straight up conflict between that provision in article one hundred and twenty dollars and it be hard to figure out exactly what judgment congress is making about the severity of the  judgment or the constitutional judgment statutorily its own judgment but if we introduced another provision where it said on the one hand you could punish them with on the other you couldn't there be a question about what congress has own judgment that would be raised under the statute but none of this gets us to saying that congress somehow looked outside the statute i mean on their basic theory the same congress that said rapists i'm serious it should be punished by death and article one hundred and twenty in the limitations provision said well we're just going to tie it to  judicial judgments and let it go back and forth between five years and life depending on what the courts say that isn't normally the way we read limitations provisions and as i tried to say at the top of the hour there's a lot of textual contextual and historical evidence here that that's not what if the courts decided that punishment is taken off the table by the constitution that's just a matter of what you can do in an actual court martial it does not affect the judgment the congress made the limitations purposes separately but relatedly  government's brief makes a rather lengthy and interesting leap persuasive argument that congress did not intend for the limitations period to turn on the courts or anybody else's judgment  only on the tax and structure of the code itself i think the parallelism between forty three dollars twelve cents the plain text of article eighteen which tells you that's not to be authorized by this chapter where you're looking for the requisite authorization for do i think we've clearly got the better interpretation of the language of article forty three thank you general justice cavanaugh thank you and good morning general wall i want to follow up on your answers to justice kagan i'm confused whether you think that the relevant interpretation of the statute is punishable by death under the u c m j or punishable by death under federal statutory law i understood you were originally to be saying under the you see m j but then in response justice kagan it sounded like you were broadening that out and saying punishable by death under federal statutory law i may have been a little unclear what justice kagan to not let me let me just be specific then if congress passed a statute outside the u s c m j that outlawed the death penalty for all federal crimes including in the military you would still say that that effect that this offense and other offenses are punishable by death under article forty three dollars i think i would have it be a harder case but as as as i think about it more justice kavanagh i think that what article eighteen indicate matter that the death penalty was off the table at the time of the defense is just a curious and it doesn't say punishable by death under this chapter and so that raises an ordinary meaning question but i think you've answered that  previously i want to turn to the constitutional issue then do you think there's any th amendment limit on congress power to make offenses in the military punishable by death a just kavanaugh we haven't tried to meet i think there you could make arguments that the th amendment doesn't apply at all that's what congress seem to think when it enact their article fifty five and you could argue that even if it applies it only applies to torture said barbarous punishments consistent with article fifty five it doesn't go further tried to make those arguments here because frankly we don't need them to prevail all we need the court to say is that even if the proportionality analysis with coke and kennedy applies the balance is just different and once but one thing just to go back to the statutory question just to say that we have to say a little more than that the balance is different and the test in the military is less restrictive i think you could say just two things that follows naturally from the court cases you could say the balance is different because the needs are different there's no national consensus in the goals of the criminal law search differently and in the military context you defer to congress judgments about military matters including military justice i think those are the only that way and congress is not up ending how limitations provisions normally work nd responded then use this court to say that rape in the military is never punishable by death no matter how vulnerable the victim no matter how many rape their victims no matter how sadistic the crime no matter how the crime affects the military or foreign relations and no matter that the death penalty for military repeats of the mid eighty's and hundreds if the court reaches that constitutional question it should not underwear long history of deference to congress judgments about military justice thank you general mr black mr chief justice and then please the court since nine hundred and fifty three dollars every court to consider it including cas as correctly understood article fifty five dollars of the u c m j to reflect congress's a specific judgment that service members should receive the same protection against cruel and unusual punishment that civilians enjoy under the th amendment thus after this court held kolker that the th amendment forecloses the death penalty for rape every military court to reach the issue held at the same result applied automatically to courts martial including perhaps predecessor in june one thousand and eighty six dollars when congress eliminated a statute of limitations for any offense punishable by death just five months later it was therefore clear that rape was not such an offense because the u c m j itself or close to the death penalty indeed that was still clear for over a minor rape by a service member could be prosecuted until the victim's th birthday if congress believe that rape was punishable by death under the one hundred and eighty six amendment the two thousand and three reform was not just on necessary it would shortened the statute of limitations congress finally eliminated a statute of limitations for all rape offenses in two thousand and six so that the military may today try any such offense committed since that but all three of the events that issue here predated that amendment which has no language suggesting congress intended it to apply retroactively mr wall spent much of his time extolling the virtues of constitutional avoidance and deference to congress is considered judgments we agreed that this court can and therefore should avoid the constitutional question congress changed the provision in the u c m j i did time when it was not just clear that this court believed raped could not be punished by death under the th amendment but right after the court of military appeal had held it couldn't be punished by death even under th see m j and so for all that the government relies upon adding the words under this chapter to article that the five we end up in the same place well it's a coker concerning the death penalty itself  and our statute here on statute limitations if they seem particularly this thing in that none of the analysis in kolker applies at least directly to the military context there is no societal evolution with respect to whether or not rape in the military could be punished by death no consensus about it in other words the announcing cokers seems at least consistent with the notion that the military context is continues to be distinct so why should that judgment about the civilian context be directly applicable on the question quite different from the hunnish meant that can be meted out the statute of limitations question i think the answer to chief justice is because that's what congress provided in article fifty five we don't dispute that congress could have provided different rules we don't dispute that after kolker congress could have reaffirmed that it wanted the death penalty of bailable as a punishment for rape in the military notwithstanding kolker but against a backdrop where all congress had said was that  tie the statute of limitations issue to punishment available under the code thank you counsel justice thomas yes counsel how do you know that congress meant to track the court's interpretation  of the th amendment with article fifty five so we have two different pieces of evidence justice thomas of course as we note in page on page thirty seven of the read brief and footnote fourteen when that language was added to the articles of war the shown no disagreement with them and has never touched article fifty five on a separate issue let's assume that you leave all the language in place in the in the statute  but there is a uniform policy both at the pentagon and in the white house for many years not to call for the death penalty in the case of rate  that policy in some way trump the language in the statute not in our view justice thomas because again we stand at the natural plain reading of the statute is whether the offense is punishable by death not whether individual cases are subject to the death penalty no i'm talking about a universal policy across the administration and in the military that they would never ask for let's say it's written  whatever formal procedures they use but it's still on the books to the point justice thomas and again i think the critical point is what congress has criticized and so in this context even if the president were to promulgated such a rule of course future president could revoke it whereas the statute would require an amendment and we think that article forty three dollars incorporates at a minimum on offenses that congress by statute has not just authorized the death penalty as a punishment but has contemplated that death is a vailable as a punishment that's a legislative determination in our view justice thomas nonexecutive one thank you justice prior law i would congress have wanted to adopt your interpretation a statute of limitations suddenly the under twining of the statutes here produces the five years that you then when they work that out they go back to nose to the limitation i mean why would congress have wanted to do that in cases of rape of a minor to two thousand and two recovered of the statue additions altogether it's the government justice briar whose position requires you to believe that congress went up and down the congress after eliminating the statute of limitations not to sex  somehow reimposed one for cases against minors in two thousand and three that's the argument that i think is completely lacking but did you do you know that this may be only a very few people perhaps me who find this sometimes helpful but did you during all this period find anything in legislative history or in presentation by the military to congress or in articles in the military that said this is a good idea to have the statute of limitations work this way to cut it down in effect the law no justice process that only reinforces our position that congress was not and can specifically about rape at all in one thousand eight hundred and six and that when it finally is to can specifically about rape as it clearly thirty two thousand and six most of those statues proceeded from the assumption that the law on the books was about the statute of limitations was five years otherwise there would have been no need for either the two thousand and three amendment in cases where the victim was a minor where the two thousand and six and then it was added rape to the list of offenses for which there can never be a statute of limitation so again i mean whether we look to legislative history or not we end up in the same place which is the actual evidence on the books the statute congress actually wrote work in a straight logical line on our view and don't on the government did you put in something maybe the other side would be the ones to look for to been able to find it were it were a lawyer in the military told his bosses oh you know this is rather interesting in bringing the statute of limitations for rape back down to five years which we've long thought it should be well so justice prior again i don't think on view there was any moment where the stat where where where anything reduced the statute of limitations for rape if anything the ninety six amendment extended it from three years to five years and you don't have to take my word for that justice prior in the more case and ninety the navy marine corps court of military review observe that the ninety six amendment changed the statue limitations from three years of pioneers and the air force court reached the exact same conclusion three years later in the boat you know case so again i mean the government had lots of policy arguments in its favor we had a statutory text and case law suggesting that at the time everyone understood it the way that we do thank you justice alit suppose someone in military missed a murder this individual as diminished mental capacity so that it would be unconstitutional under and related cases that's where we disagree with the government about all of the cases it purports to rely on in every single case the government has cited to you the underlying offense remained punishable by death that's what makes this case different why isn't the offense with that individual dead a crime with which that individual would be charged so if the offense when that offense would not be punishable by death by virtue of the characteristics of that particular offender little as if you had for example a juvenile offender or or a diminished capacity offender in that context they still committed a death eligible assess that is to say they still committed an offense that is defined as capital murder or capital felony murder and it's only the circumstances of their particularly case that takes the death penalty off the table congress chose the words justice alito then punishable by death it's not a separate offense when you charge capital murder against a juvenile or a diminished capacity offender it's just a separate charge based on their capacity through out history there are unfortunately been many instances in which are taking the death penalty off the table for offenses like that so we're going to say justice alito if there are separate offenses under the u c m j that could be charged in those circumstances rape as a war crime aggravated rape as a war crime could be charged under different provisions of the u c m j and so when mr off as our position requires this court to take that off the table frankly he's just wrong the question is whether rape simpliciter with none of those extenuating circumstances charged slowly under article one  foreclosed by coker and justice alito i think congress's choice in article fifty five was to say yesterday as members you might commit heinous crimes but just like defendants are criminal civilian justice system we're going to protect you to the same extent by the  amendment that was congress choice to make what is rape simpliciter this court i mean i think we've had examples justice alito where the death penalty remains available for example for rape that results in death we had examples for example  mr walsh has a hypothetical about rape as a war crime that is not always charged or the military has the stepper capacity to charge war crimes under different articles of the u c m j and where the laws of war recognize the death penalty or that charge to pursue the definitely in that case judge alito we would not suggest that case was settled by coker whereas here there is no charge under those provisions where it's simply under article one hundred and twenty two dollars which i should say congress has not vladik if i could take you back to the government's textual argument and as i understand it it goes something like this it says if you look at article forty three alone there is an ambiguity there because it says any offense punishable by death but it doesn't say punishable under what law is it under the cologne alone is it under all federal statutory law is it under the constitution as well it just doesn't say and then general will said so we look to surrounding context and and we find in article one hundred and twenty in article eighteen in that it supports the idea that it's really the political loan that congress was referring to so what's your response to that so we have two responses justice kagan the st is even on that reading the code alone includes article fifty five dollars and so even if we were to read the text to add the words the government would have us add we end up in the same place because article fifty five as it has been uniformly interpreted for seventy years applies koger the courts martial but justice kagan nd and in any event even if the court instead the test is ambiguous again the canons of justice alito pointed out in his question to mr wall work against the government here the government needs the test to be clearly in its favor to prevail here and i think if the test is ambiguous there are compelling reasons to interpret it one interpretation requires courts to decide the constitutionality of a punishment at the outset of routine criminal proceedings i mean this is a good case where we are good example where we would have to decide how coco and kennedy applied to the military just and in on the side of a pretty routine criminal case so doesn't that cut against you i don't believe so justice kagan because i actually think congress has decided that just to say i don't think it is a difficult inquiry as all the military cases we cite in our brief suggest for the military courts to decide whether this court has answered as an th amendment matter in a civilian case whether the death penalty is available for a particularly offense that is the only question