. . . During the period at issue, Article 120(a) of the UCMJ provided that rape could be “punished by death,” 10 U.S.C. §920(a) (1982 ed.); §920(a) (1994 ed.), and Article 43(a), which was amended in 1986, provided that an offense “punishable by death” could be tried and punished “at any time without limitation,” National Defense Authorization Act for Fiscal Year 1987, 100 Stat. 3908; see 10 U.S.C. §843(a) (1988 ed.). The crux of the question before us is the meaning of the phrase “punishable by death” in the latter provision. Respondents contend—and the CAAF held—that the phrase means capable of punishment by death when all applicable law is taken into account. See United States v. Mangahas, 77 M.J. 220, 224 (2018). Because this Court held in Coker v. Georgia, 433 U.S. 584, 592 (1977), that the Eighth Amendment forbids a death sentence for the rape of an adult woman, respondents argue that they could not, in fact, have been sentenced to death, and therefore the statute of limitations for their crimes (committed in 1998, 2000, and 2005) was the 5-year statute that generally governed non-capital offenses. See 10 U.S.C. §843(b)(1) (1994 ed.); §843(b)(1) (2000 ed.). By contrast, the Government argues that Article 43(a)’s reference to “punishable by death” means capable of punishment by death under the penalty provisions of the UCMJ, and since Article 120(a) provided (despite Coker) that rape could be punished by death, it follows that there was no time limit for filing rape charges against respondents.
The interpretation advocated by respondents and adopted by the CAAF finds support at first blush in contemporaneous dictionary definitions of the term “punishable.” See 12 Oxford English Dictionary 845 (2d ed. 1989) (“Liable to punishment; capable of being punished. . . . Of an offence: Entailing punishment”); Webster’s Third New International Dictionary 1843 (1986) (“deserving of, or liable to, punishment: capable of being punished by law or right”); Black’s Law Dictionary 1110 (5th ed. 1979) (“Deserving of or capable or liable to punishment; capable of being punished by law or right”); Random House Dictionary of the English Language 1165 (1966) (“liable to or deserving punishment”). But upon inspection, definitions shed little light on the dispute because they largely re-raise the question over which the parties divide: capable of being punished under what law? In essence, the Government sees the term “punishable” in Article 43(a) as something of a term of art that is defined by the specification of the punishments set out in the penalty provisions of the UCMJ.
* * *
On balance, we find the Government’s interpretation more persuasive. The meaning of a statement often turns on the context in which it is made, and that is no less true of statutory language. See Tyler v. Cain, 533 U.S. 656, 662 (2001); Deal v. United States, 508 U.S. 129, 132 (1993); A. Scalia & B. Garner, Reading Law 167 (2012). And in these cases, context is determinative. The phrase “punishable by death” appears in a statute of limitations provision for prosecutions under the UCMJ, and for at least three reasons, that context weighs heavily in favor of the Government’s interpretation.
* * *
Viewing Article 43(a) in context, we are convinced that “punishable by death” is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely.Justice Samuel Alito wrote the Opinion of the Court; Justice Neil Gorsuch concurred, while noting his continuing view that the Court lacks direct appellate jurisdiction over decisions of the Court of Appeals. He wryly cites an earlier case, Ortiz v. United States, in which Justice Alito had expressed the same view in dissent. If he stands his ground, the result will be that he will never vote to grant certiorari in a CAAF case. That means a petitioner (government or defense) will need to get four votes out of eight, rather than four out of nine, for a grant. Given the Solicitor General's higher certiorari batting average, this shoe will mostly pinch the accused. [Apologies for the mixed metaphor.] So cert just got even harder--a dollop of nasty icing on the current discriminatory cert statute.