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In 1950 military justice changed drastically with the enactment of the Uniform Code of Military Justice (UCMJ). The UCMJ brought many protections to service members that were standard in civilian criminal practice, but there still existed differences between the two systems. Recent changes to the UCMJ eliminated more of those differences. The Joint Service Committee recommended further changes, which were accepted, to the way the military handles guilty pleas and plea agreements in the Rules for Courts-Martial (RCM), which govern the procedure and substance of courts-martial. The primary change discussed here is the removal of the military’s “beat the deal” provision. Previously, the accused and the convening authority agreed to a guilty plea and the maximum sentence to be permitted by the convening authority. The accused then chose whether he wanted to be sentenced by a panel (the military equivalent of a jury) or a military judge, and “[i]f the sentencing authority impose[d] a less severe sentence than agreed upon [with the convening authority], the accused [received] the lesser sentence. The sentence [could] never exceed that agreed upon.” The sentencing authority was also unaware of the terms for which the accused bargained. The removal of this provision will allow military plea agreements (previously called pretrial agreements) to more closely emulate the civilian system of plea bargaining. However, the civilian system is not without its flaws. To avoid some of the civilian system’s pitfalls, military justice will need to rely on the gumption of military judges to reject plea agreements that are unjust, in the same way it relies on military judges to reject guilty pleas that are improvident.

The major flaw in the civilian plea bargaining system is its inherent coercion. Two of the manifestations of that coercion are that innocent people may plead guilty and that guilty people may accept unjust sentences. The military justice system already has an effective process in place to prevent innocent people from pleading guilty. However, the changes to the RCM highlight the importance of preventing the guilty accused from being coerced into accepting unjust plea agreements.

Part I of this Essay begins with a brief history of plea bargaining in the military, and discusses the process the military used to dispose of guilty pleas and pretrial agreements, and then highlights some of the changes. Part II analyzes the civilian method of plea bargaining and delves into the two coercive manifestations of the system. Part III presents how the military avoided the first pitfall of coercive plea agreements and recommends how the military can ensure that changes to its system do not result in unjust sentences. This Essay concludes that while the removal of military judges’ independent sentencing ability in concert with a pretrial agreement reduces their authority, it actually increases military judges’ responsibility, as they must be actively willing to reject unjust plea agreements.



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