Loving v. United States, 517 U.S. 748, 27 (1996)

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Stevens, J., concurring

scribe aggravating factors was in all respects consistent with these precepts, and the promulgation of RCM 1004 was well within the delegated authority. Loving's sentence was lawful, and the judgment of the Court of Appeals for the Armed Forces is affirmed.

It is so ordered.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring.

As Justice Scalia correctly points out, petitioner has not challenged the power of the tribunal to try him for a capital offense. Post, at 775. It is important to add to this observation that petitioner's first victim was a member of the Armed Forces on active duty and that the second was a retired serviceman who gave petitioner a ride from the barracks on the same night as the first killing. Brief for United States 5. On these facts, this does not appear to be a case in which petitioner could appropriately have raised the question whether the holding in Solorio v. United States, 483 U. S. 435 (1987), should be extended to reach the imposition of the death penalty for an offense that did not have the "service connection" required prior to the change in the law effected in that case. Id., at 451 (Stevens, J., concurring in judgment).

The question whether a "service connection" requirement should obtain in capital cases is an open one both because Solorio was not a capital case, and because Solorio's review of the historical materials would seem to undermine any contention that a military tribunal's power to try capital offenses must be as broad as its power to try noncapital ones. See id., at 442-446. Moreover, the question is a substantial one because, when the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.

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