Statement of KENNEDY, J. 

_________________ 

_________________ 

 

Cite as: 554 U. S. ____ (2008) 1 

Order 

SUPREME COURT OF THE UNITED STATES 

No. 07–343 

PATRICK KENNEDY, PETITIONER v. LOUISIANA 

ON PETITION FOR REHEARING 

[October 1, 2008] 

The opinion of the Court is modified by the addition of a 

footnote at page 15, after the word “considered” in the last

paragraph of Part III–A. The footnote is as follows: 

* When issued and announced on June 25, 2008, the Court’s decision neither noted nor discussed the military penalty for rape 

under the Uniform Code of Military Justice. See 10 U. S. C. 

§§856, 920; Manual for Courts-Martial, United States, Part IV, 

¶45.f(1) (2008). In a petition for rehearing respondent argues that 

the military penalty bears on our consideration of the question in 

this case. For the reasons set forth in the statement respecting

the denial of rehearing, post, p. ___, we find that the military penalty does not affect our reasoning or conclusions. 

The dissenting opinion is modified as follows: 

(1) By the addition of the words “a federal district court

to impose” at page 13 between the words “a law permitting” and the words “the death penalty” in the first paragraph of Part I–E; 

(2) By the addition of footnote 6 after the word “values”

in said paragraph. The footnote is as follows: 

6 Moreover, as noted in the petition for rehearing, the Uniform 

Code of Military Justice permits such a sentence. See 10 U. S. C. 

§856; Manual for Courts-Martial, United States, Part II, Ch. X,

Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1). 

The petition for rehearing is denied. 

JUSTICE THOMAS and JUSTICE ALITO would grant the 

petition for rehearing. 
 

 

2 KENNEDY v. LOUISIANA 

Statement of KENNEDY, J. 

 Statement of JUSTICE KENNEDY, with whom JUSTICE 

STEVENS, JUSTICE SOUTER, JUSTICE GINSBURG, and 

JUSTICE BREYER join, respecting the denial of rehearing. 

In its petition for rehearing respondent argues that the

military penalty for rape, a congressional amendment of 

the Uniform Code of Military Justice (UCMJ) in 2006, and 

a related executive order in 2007 should alter the Court’s 

analysis of the Eighth Amendment question in this case.

After considering the petition as well as supplemental 

briefs from the parties and the United States, the Court 

has determined that rehearing is not warranted. 

The military death penalty for rape has been the rule for 

more than a century. As respondent acknowledges in its 

petition for rehearing, military law has included the death

penalty for rape of a child or adult victim since at least 

1863. See §30, 12 Stat. 736. Since 1950, that punishment 

has applied to peacetime offenses by members of the military. See Art. 120, 64 Stat. 140. The death penalty, however, has not been carried out against a military offender

for almost 50 years. The last instance of military capital 

punishment, in 1961, was for the crimes of rape and attempted murder. See R. Paternoster, R. Brame, & S. 

Bacon, The Death Penalty: America’s Experience with

Capital Punishment 69 (2008). There are six individuals 

now subject to a final sentence of death under the UCMJ, 

see NAACP Legal Defense and Educational Fund, Inc.,

Death Row U. S. A. 66 (Winter 2008), all of whom committed offenses that involved the death of a victim. 

In 2006, Congress passed the National Defense Authorization Act, which authorized that year’s appropriations for 

military and national-security activities. Pub L. 109–163. 

Also in that bill, Congress revised the military’s sexualassault statutes, in part by reclassifying the UCMJ’s

offense of rape as two separate crimes: adult rape and

child rape. §552(a)(1), 119 Stat. 3257. It is unclear what 

effect, if any, that reclassification worked on the availabil­
Cite as: 554 U. S. ____ (2008) 3 

Statement of KENNEDY, J. 

ity of the military death penalty. Pending the President’s

setting the maximum penalty for adult rape and child 

rape, Congress included a temporary provision applying 

the existing maximum punishment of death for rape as

the “interim maximum punishment” for those crimes. Id., 

§552(b)(1), at 3263; see also 10 U. S. C. §856. But Congress also removed from the text of the statute itself, §920, 

the specific authorization of “death” as a punishment; the 

new statute provides only that adult rape and child rape 

shall be punished “as a court-martial may direct.” For his 

part, the President later left in place, in the Manual for 

Courts-Martial, the availability of the death penalty for 

rape of an adult or child victim. Exec. Order No. 13447, 72 

Fed. Reg. 56214 (2007); Manual for Courts-Martial,

United States, Part IV, ¶45.f(1) (2008). The parties disagree on the effect of Congress’ and the President’s actions 

in light of 10 U. S. C. §818, which allows imposition of the

death penalty only “when specifically authorized by this

chapter.”

In any event, authorization of the death penalty in the

military sphere does not indicate that the penalty is constitutional in the civilian context. The military death

penalty for rape was in effect before the decisions in 

Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and 

Coker v. Georgia, 433 U. S. 584 (1977); and when the 

Court surveyed state and federal law in Coker, it made no 

mention of the military penalty. See id., at 595–596, 593, 

and n. 6 (plurality opinion) (not including the military as a

“jurisdiction in the United States” that authorized the 

death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman but citing only the nonmilitary provision). The same is true of more recent Eighth

Amendment cases in the civilian context. See Enmund v. 

Florida, 458 U. S. 782, 789–793 (1982); Tison v. Arizona, 

481 U. S. 137, 152–154 (1987). This case, too, involves the 
 

4 KENNEDY v. LOUISIANA 

Statement of KENNEDY, J. 

application of the Eighth Amendment to civilian law; and

so we need not decide whether certain considerations 

might justify differences in the application of the Cruel 

and Unusual Punishments Clause to military cases (a 

matter not presented here for our decision). Cf. Loving v. 

United States, 517 U. S. 748, 755 (1996). 

That the Manual for Courts-Martial retains the death 

penalty for rape of a child or an adult when committed by

a member of the military does not draw into question our 

conclusions that there is a consensus against the death

penalty for the crime in the civilian context and that the 

penalty here is unconstitutional. The laws of the separate

States, which have responsibility for the administration of 

the criminal law for their civilian populations, are entitled

to considerable weight over and above the punishments

Congress and the President consider appropriate in the 

military context. The more relevant federal benchmark is 

federal criminal law that applies to civilians, and that law 

does not permit the death penalty for child rape. Until the 

petition for rehearing, none of the briefs or submissions 

filed by the parties or the amici in this case cited or discussed the UCMJ provisions.