10 U.S.C. § 853 — Art. 53. Findings and sentencing

Page 768 TITLE 10—ARMED FORCES § 852 Subsec. (c). Pub. L. 114–328, § 5234(3), struck out ‘‘or the president of a court-martial without a military judge’’ after ‘‘the military judge’’ in introductory pro- visions. 1968—Subsec. (a). Pub. L. 90–632, § 2(21)(A), limited the balloting on the question of challenges to courts-mar- tial without military judges. Subsec. (b). Pub. L. 90–632, § 2(21)(B), substituted ‘‘military judge’’ for ‘‘law officer’’ and inserted ref- erence to the military judge’s ruling upon challenges for cause when a military judge is part of a court-mar- tial and reference to questions of law. Subsec. (c). Pub. L. 90–632, § 2(21)(C), substituted ‘‘military judge’’ for ‘‘law officer’’ and made minor changes in phraseology eliminating the division be- tween general and special court-martials. Subsec. (d). Pub. L. 90–632, § 2(21)(D), added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title. § 852. Art. 52. Votes required for conviction, sen- tencing, and other matters (a) IN GENERAL.—No person may be convicted of an offense in a general or special court-mar- tial, other than— (1) after a plea of guilty under section 845(b) of this title (article 45(b)); (2) by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or (3) in a court-martial with members under section 816 of this title (article 16), by the con- currence of at least three-fourths of the mem- bers present when the vote is taken. (b) LEVEL OF CONCURRENCE REQUIRED.— (1) IN GENERAL.—Except as provided in sub- section (a) and in paragraph (2), all matters to be decided by members of a general or special court-martial shall be determined by a major- ity vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the num- ber of votes required for that finding or sen- tence. (2) SENTENCING.—A sentence of death re- quires (A) a unanimous finding of guilty of an offense in this chapter expressly made punish- able by death and (B) a unanimous determina- tion by the members that the sentence for that offense shall include death. All other sen- tences imposed by members shall be deter- mined by the concurrence of at least three- fourths of the members present when the vote is taken. (Aug. 10, 1956, ch. 1041, 70A Stat. 55; Pub. L. 90–632, § 2(22), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5235, Dec. 23, 2016, 130 Stat. 2916.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 852(a) ...... 852(b) ...... 50:627(a). 50:627(b) May 5, 1950, ch. 169, § 1 (Art. 52), 64 Stat. 125. 852(c) ...... 50:627(c). In subsections (a) and (b), the word ‘‘may’’ is sub- stituted for the word ‘‘shall’’. In subsection (b)(2), the words ‘‘for more than’’ are substituted for the words ‘‘in excess of’’. In subsection (c), the word ‘‘disqualifies’’ is sub- stituted for the words ‘‘shall disqualify’’. The word ‘‘is’’ is substituted for the words ‘‘shall be’’ in the last two sentences. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to number of votes required for conviction of an offense for which the death penalty is mandatory, sentences, and all other questions, respectively. 1968—Subsec. (a)(2). Pub. L. 90–632, § 2(22)(A), inserted reference to the exception provided in section 845(b) of this title (article 45(b)). Subsec. (c). Pub. L. 90–632, § 2(22)(B), provided that a determination to reconsider a finding of guilty or to re- consider a sentence, with a view toward decreasing it, may be made by a vote of less than a majority vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sen- tence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title. § 853. Art. 53. Findings and sentencing (a) ANNOUNCEMENT.—A court-martial shall an- nounce its findings and sentence to the parties as soon as determined. (b) SENTENCING GENERALLY.— (1) GENERAL AND SPECIAL COURTS-MARTIAL.— Except as provided in subsection (c) for capital offenses, if the accused is convicted of an of- fense in a trial by general or special court- martial, the military judge shall sentence the accused. The sentence determined by the mili- tary judge constitutes the sentence of the court-martial. (2) SUMMARY COURTS-MARTIAL.—If the ac- cused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused. (c) SENTENCING FOR CAPITAL OFFENSES.— (1) IN GENERAL.—In a capital case, if the ac- cused is convicted of an offense for which the court-martial may sentence the accused to death— (A) the members shall determine— Page 769 TITLE 10—ARMED FORCES § 853a (i) whether the sentence for that offense shall be death or life in prison without eli- gibility for parole; or (ii) whether the matter shall be returned to the military judge for determination of a lesser punishment; and (B) the military judge shall sentence the accused for that offense in accordance with the determination of the members under subparagraph (A). (2) LESSER AUTHORIZED PUNISHMENTS.—In ac- cordance with regulations prescribed by the President, the military judge may include in any sentence to death or life in prison without eligibility for parole other lesser punishments authorized under this chapter. (3) OTHER NON-CAPITAL OFFENSES.—In a cap- ital case, if the accused is convicted of a non- capital offense, the accused shall be sentenced for such non-capital offense in accordance with subsection (b), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death. (Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 114–328, div. E, title LVII, § 5236, Dec. 23, 2016, 130 Stat. 2916; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(G), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539E(a), Dec. 27, 2021, 135 Stat. 1700.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 853 .......... 50:628. May 5, 1950, ch. 169, § 1 (Art. 53), 64 Stat. 125. The word ‘‘A’’ is substituted for the word ‘‘Every’’. Editorial Notes AMENDMENTS 2021—Subsec. (b)(1). Pub. L. 117–81, § 539E(a)(1), amended par. (1) generally. Prior to amendment, par. (1) provided that, except for capital offenses, accused who is convicted in trial by general or special court- martial shall be sentenced by military judge or, if court-martial consisted of military judge and members, accused may elect sentencing by members. Subsec. (c)(1). Pub. L. 117–81, § 539E(a)(2)(A), amended par. (1) generally. Prior to amendment, text read as fol- lows: ‘‘In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death, the members shall determine whether the sentence for that offense shall be death or a lesser authorized punishment.’’ Subsec. (c)(2). Pub. L. 117–81, § 539E(a)(2)(B), sub- stituted ‘‘the military judge’’ for ‘‘the court-martial’’. 2017—Subsec. (b)(1)(B). Pub. L. 115–91 struck out ‘‘in a trial’’ after ‘‘convicted of an offense’’. 2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: ‘‘A court-martial shall announce its findings and sentence to the parties as soon as determined.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 117–81, div. A, title V, § 539E(f), Dec. 27, 2021, 135 Stat. 1706, provided that: ‘‘The amendments made by this section [amending this section and sections 853a, 856, and 866 of this title and repealing provisions set out as a note under section 856 of this title] shall take effect on the date that is two years after the date of the enactment of this Act [Dec. 27, 2021] and shall apply to sentences adjudged in cases in which all find- ings of guilty are for offenses that occurred after the date that is two years after the date of the enactment of this Act.’’ EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under sec- tion 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. § 853a. Art. 53a. Plea agreements (a) IN GENERAL.—(1) Subject to paragraph (3), at any time before the announcement of findings under section 853 of this title (article 53), the convening authority and the accused may enter into a plea agreement with respect to such mat- ters as— (A) the manner in which the convening au- thority will dispose of one or more charges and specifications; and (B) limitations on the sentence that may be adjudged for one or more charges and speci- fications. (2) The military judge of a general or special court-martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement. (3) With respect to charges and specifications over which a special trial counsel exercises au- thority pursuant to section 824a of this title (ar- ticle 24a), a plea agreement under this section may only be entered into between a special trial counsel and the accused. Such agreement shall be subject to the same limitations and condi- tions applicable to other plea agreements under this section (article). (b) ACCEPTANCE OF PLEA AGREEMENT.—Subject to subsection (c), the military judge of a general or special court-martial shall accept a plea agreement submitted by the parties, except that— (1) in the case of an offense with a sen- tencing parameter set forth in regulations pre- scribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence that is outside the sentencing param- eter if the military judge determines that the proposed sentence is plainly unreasonable; and (2) in the case of an offense for which the President has not established a sentencing pa- rameter pursuant to section 539E(e) of the Na- tional Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence if the military judge determines that the proposed sentence is plainly unreasonable. (c) LIMITATION ON ACCEPTANCE OF PLEA AGREE- MENTS.—The military judge of a general or spe-