754
Opinion of the Court
prisonment for life as a court-martial may direct." 10 U. S. C. § 918.
So matters stood until 1983, when the CMA confronted a challenge to the constitutionality of the military capital punishment scheme in light of Furman v. Georgia, 408 U. S. 238 (1972), and our ensuing death penalty jurisprudence. Although it held valid most of the death penalty procedures followed in courts-martial, the court found one fundamental defect: the failure of either the UCMJ or the RCM to require that court-martial members "specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty." United States v. Matthews, 16 M. J. 354, 379. The court reversed Matthews' death sentence, but ruled that either Congress or the President could remedy the defect and that the new procedures could be applied retroactively. Id., at 380-382.
The President responded to Matthews in 1984 with an Executive Order promulgating RCM 1004. In conformity with 10 U. S. C. § 852(a)(1), the Rule, as amended, requires a unanimous finding that the accused was guilty of a capital offense before a death sentence may be imposed, RCM 1004(a)(2). The Rule also requires unanimous findings (1) that at least one aggravating factor is present and (2) that any extenuating or mitigating circumstances are substantially outweighed by any admissible aggravating circumstances, 1004(b). RCM 1004(c) enumerates 11 categories of aggravating factors sufficient for imposition of the death penalty. The Rule also provides that the accused is to have "broad latitude to present evidence in extenuation and mitigation," 1004(b)(3), and is entitled to have the members of the court-martial instructed to consider all such evidence before deciding upon a death sentence, 1004(b)(6).
This is the scheme Loving attacks as unconstitutional. He contends that the Eighth Amendment and the doctrine of separation of powers require that Congress, and not the
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