10 U.S.C. § 853a — Art. 53a. Plea agreements

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- Page 770 TITLE 10—ARMED FORCES § 854 cial court-martial shall reject a plea agreement that— (1) contains a provision that has not been ac- cepted by both parties; (2) contains a provision that is not under- stood by the accused; (3) except as provided in subsection (c), con- tains a provision for a sentence that is less than the mandatory minimum sentence appli- cable to an offense referred to in section 856(b)(2) of this title (article 56(b)(2)); (4) is prohibited by law; or (5) is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements. (d) LIMITED CONDITIONS FOR ACCEPTANCE OF PLEA AGREEMENT FOR SENTENCE BELOW MANDA- TORY MINIMUM FOR CERTAIN OFFENSES.—With re- spect to an offense referred to in section 856(b)(2) of this title (article 56(b)(2))— (1) the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and (2) upon recommendation of the trial coun- sel, in exchange for substantial assistance by the accused in the investigation or prosecu- tion of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged. (e) BINDING EFFECT OF PLEA AGREEMENT.— Upon acceptance by the military judge of a gen- eral or special court-martial, a plea agreement shall bind the parties (including the convening authority and the special trial counsel in the case of a plea agreement entered into under sub- section (a)(3)) and the court-martial. (Added Pub. L. 114–328, div. E, title LVII, § 5237, Dec. 23, 2016, 130 Stat. 2917; amended Pub. L. 115–91, div. A, title V, § 531(d), title X, § 1081(c)(1)(H), Dec. 12, 2017, 131 Stat. 1384, 1598; Pub. L. 117–81, div. A, title V, §§ 539, 539E(b), Dec. 27, 2021, 135 Stat. 1698, 1701.) Editorial Notes REFERENCES IN TEXT Section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, referred to in subsec. (b), is section 539E(e) of Pub. L. 117–81, which is set out as a note under section 856 of this title. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–81, § 539(a)(1), sub- stituted ‘‘Subject to paragraph (3), at any time’’ for ‘‘At any time’’ in introductory provisions. Subsec. (a)(3). Pub. L. 117–81, § 539(a)(2), added par. (3). Subsecs. (b), (c). Pub. L. 117–81, § 539E(b), added sub- sec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 117–81, § 539E(b)(1), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e). Pub. L. 117–81, § 539(b), inserted ‘‘(including the con- vening authority and the special trial counsel in the case of a plea agreement entered into under subsection (a)(3))’’ after ‘‘parties’’. Subsec. (e). Pub. L. 117–81, § 539E(b)(1), redesignated subsec. (d) as (e). 2017—Subsec. (b)(4), (5). Pub. L. 115–91, § 531(d)(1), added pars. (4) and (5). Subsec. (d). Pub. L. 115–91, § 1081(c)(1)(H), which di- rected substitution of ‘‘court-martial’’ for ‘‘military judge’’ the second place it appeared, could not be exe- cuted because of the prior amendment by Pub. L. 115–91, § 531(d)(2). See below. Pub. L. 115–91, § 531(d)(2), substituted ‘‘shall bind the parties and the court-martial’’ for ‘‘shall bind the par- ties and the military judge’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by section 539 of Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and ap- plicable with respect to offenses that occur after that date, with provisions for delayed effect and applica- bility if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title. Amendment by section 539E(b) of Pub. L. 117–81 effec- tive on the date that is two years after Dec. 27, 2021, and applicable to sentences adjudged in cases in which all findings of guilty are for offenses that occurred after the date that is two years after Dec. 27, 2021, see section 539E(f) of Pub. L. 117–81, set out as a note under section 853 of this title. EFFECTIVE DATE OF 2017 AMENDMENT Amendment by section 531(d) of Pub. L. 115–91 effec- tive 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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. Amendment by section 1081(c)(1)(H) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as pro- vided 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 section 801 of this title. EFFECTIVE DATE Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provi- sions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title. § 854. Art. 54. Record of trial (a) GENERAL AND SPECIAL COURTS-MARTIAL.— Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court-reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official se- lected as the President may prescribe by regula- tion. (b) SUMMARY COURTS-MARTIAL.—Each sum- mary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner required by such regulations as the President may prescribe. (c) CONTENTS OF RECORD.—(1) Except as pro- vided in paragraph (2), the record shall contain such matters as the President may prescribe by regulation. (2) In accordance with regulations prescribed by the President, a complete record of pro- ceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six months, or for- feiture of pay for more than six months. (d) COPY TO ACCUSED.—A copy of the record of the proceedings of each general and special