What Pretrial Agreements (Plea Bargains) Are Available in the Military Justice System?

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The military’s plea bargain is the plea agreement under Article 53a of the UCMJ and Rule for Courts-Martial 705. The accused may promise to plead guilty (or enter a confessional stipulation) in exchange for promises on referral, withdrawn charges, evidence, or sentence limits. Once the military judge accepts it, the agreement binds the parties and the court-martial. For covered offenses handled by a special trial counsel, only the special trial counsel can enter the agreement. “Plea agreement” is the term used since January 1, 2019; older cases and materials speak of “pretrial agreements”.

Who negotiates

  • Ordinary offenses: the convening authority and the accused (Art. 53a(a)(1)).
  • Offenses over which a special trial counsel exercises authority: “a plea agreement under this section may only be entered into between a special trial counsel and the accused” (Art. 53a(a)(3)). Under R.C.M. 705(a), such an agreement “may bind convening authorities and other commanders” subject to the Secretary’s limits. This applies to covered offenses committed after December 27, 2023, and to earlier offenses over which the special trial counsel elects to exercise authority.
  • Timing: an agreement may be made “at any time before the announcement of findings” (Art. 53a(a)(1)).
  • The judge stays out: the military judge “may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement” (Art. 53a(a)(2)).

What each side can promise

Under R.C.M. 705(b), the accused may promise to plead guilty to, or enter a confessional stipulation as to, one or more charges, and to meet other permitted conditions. The government may promise to:

  • refer the charges to a certain type of court-martial;
  • refer a capital offense as noncapital;
  • withdraw one or more charges or specifications;
  • have trial counsel present no evidence on one or more specifications;
  • limit the sentence under R.C.M. 705(d); or
  • take other action within its authority.

Permitted conditions include a stipulation of fact, testifying in another person’s trial, restitution, conditions of probation, waiving procedural rights such as the Article 32 hearing or trial by members, and, where the judge sentences, terms requiring confinement for different specifications to run concurrently or consecutively (R.C.M. 705(c)(2)).

Sentence limits

A sentence limitation may set a maximum, a minimum, both, or “a specified sentence or portion of a sentence that shall be imposed by the court-martial” (R.C.M. 705(d)(1)). Where the military judge will sentence and the agreement limits confinement or fines for more than one specification, it must state separate limits for each (R.C.M. 705(d)(2)(A)(i)). A limitation may not include the possibility of death (R.C.M. 705(d)(4)).

Binding effect. “Upon acceptance by the military judge of a general or special court-martial, a plea agreement shall bind the parties (including the convening authority and the special trial counsel …) and the court-martial” (Art. 53a(e)). The court-martial “shall sentence the accused in accordance with the limits established by the plea agreement” (R.C.M. 1002(a)(3)). For how the judge builds the sentence within those limits, see how the sentencing phase of a court-martial proceeds.

Mandatory minimums. For offenses with a mandatory minimum under Article 56(b) (rape, sexual assault, and the corresponding child offenses, and attempts or conspiracies to commit them), the judge may accept an agreement providing for a bad-conduct discharge, and, on trial counsel’s recommendation for substantial assistance in the investigation or prosecution of another person, an agreement below the mandatory minimum (Art. 53a(d)).

When the judge must, or may, reject the agreement

Must reject (Art. 53a(c)) an agreement that:

  • contains a provision not accepted by both parties;
  • contains a provision the accused does not understand;
  • provides for a sentence below an applicable mandatory minimum, except as Article 53a(d) allows;
  • is prohibited by law; or
  • conflicts with a presidential regulation on plea agreements.

May reject (Art. 53a(b)) a proposed sentence as “plainly unreasonable”. For an offense with a sentencing parameter, that power applies only to a proposed sentence “that is outside the sentencing parameter”; for an offense without a parameter, it applies to any proposed sentence.

Terms that cannot be enforced. A term “shall not be enforced” if the accused did not freely and voluntarily agree to it, or if it deprives the accused of “the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete presentencing proceedings; the complete and effective exercise of post-trial and appellate rights” (R.C.M. 705(c)(1)). A provision barring motions on non-waivable issues is improper (Discussion).

Waivable issues can be bargained. In United States v. Suarez, 86 M.J. 65, listed in the Court of Appeals for the Armed Forces’ digest under its 2024 term, the court held that a “waive all waivable motions” provision, confirmed during the providence inquiry, waived appellate review of an unlawful command influence claim. The waiver must be knowing and voluntary. See unlawful command influence and how it is addressed.

The plea itself still has to be provident

An agreement does not replace the guilty plea inquiry. Before accepting a guilty plea, the judge must explain the offense, the maximum and any mandatory minimum penalty, and the effect of the agreement’s limits; confirm the plea is voluntary and not the result of promises “apart from a plea agreement”; and question the accused under oath to establish a factual basis (R.C.M. 910(c)-(e)). The judge must see the entire agreement and confirm that the accused understands it and the parties agree on its terms; if not, the judge either conforms it, with the government’s consent, to the accused’s understanding, or lets the accused withdraw the plea (R.C.M. 910(f)). The plea types and the providence inquiry are covered in how guilty pleas are handled in military courts.

Partial agreements. An agreement can cover guilty pleas to some specifications while others go to trial. If the accused pleads guilty to some offenses and contests others before members, the contested offenses proceed to trial on the merits (Discussion to R.C.M. 910(c)(6)).

If the accused does not perform

Withdrawn or dismissed charges can be reinstituted if the accused breaches the agreement, without a prior judicial finding of breach; if the defense then moves to dismiss on the ground that the government is still bound, the government must prove the breach by a preponderance of the evidence (Discussion to R.C.M. 705(b)(2)(C)).

Where Article 53a came from

Article 53a was added by the Military Justice Act of 2016 (Pub. L. 114-328, § 5237) and took effect January 1, 2019; the FY2022 NDAA added the special trial counsel provision and the “plainly unreasonable” rejection standards (Pub. L. 117-81, §§ 539, 539E(b)). Older cases and materials refer to “pretrial agreements” under the rules then in force; for current cases, the terms that matter are Article 53a(e)’s binding effect on “the court-martial” and R.C.M. 1002(a)(3).

Sources

This article is general information about military law, not legal advice for any individual case.

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