Loving v. United States, 517 U.S. 748, 6 (1996)

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Cite as: 517 U. S. 748 (1996)

Opinion of the Court

jected a proposal to remove the death penalty from court-martial jurisdiction. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20-21 (1958).

Over the next two centuries, Congress expanded court-martial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. Act of Mar. 3, 1863, 30, 12 Stat. 736, Rev. Stat. 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 509, 514 (1879). In 1916, Congress granted to the military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. Articles of War of 1916, ch. 418, 3, Arts. 92-93, 39 Stat. 664. Persons accused of the latter two crimes were to be turned over to the civilian authorities. Art. 74, 39 Stat. 662. In 1950, with the passage of the UCMJ, Congress lifted even this restriction. Article 118 of the UCMJ describes four types of murder subject to court-martial jurisdiction, two of which are punishable by death:

"Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—

"(1) has a premeditated design to kill; "(2) intends to kill or inflict great bodily harm; "(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or

"(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; "is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or im-

753

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