Sec. 539F. Sentencing reform
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Section 853 of title 10, United States Code (article 53 of the Uniform Code of Military Justice), is amended— in subsection (b), by amending paragraph
(1)to read as follows: Except as provided in subsection
(c)for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused. The sentence determined by the military judge constitutes the sentence of the court-martial. ; in subsection (c)— by amending paragraph
(1)to read as follows: 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 life in prison without eligibility for parole; or whether the matter shall be returned to the military judge for determination of a lesser punishment; and the military judge shall sentence the accused for that offense in accordance with the determination of the members under subparagraph (A). ; and in paragraph (2), by striking the court-martial and inserting the military judge . Section 853a of title 10, United States Code (article 53a of the Uniform Code of Military Justice), as amended by section 539A of this subtitle, is further amended— by redesignating subsections (b), (c), and (d), as subsections (c), (d), and (e), respectively; and by inserting after subsection
(a)the following new subsection: Subject to subsections
(c)and (d), the military judge of a general or special court-martial shall accept a plea agreement submitted by the parties, except that— in the case of an offense with a sentencing parameter under section 856 of this chapter (article 56), the military judge may reject a plea agreement that proposes a sentence that is outside the sentencing parameter if the military judge determines that the proposed sentence is plainly unreasonable; and in the case of an offense with no sentencing parameter under section 856 of this chapter (article 56), the military judge may reject a plea agreement that proposes a sentence if the military judge determines that the proposed sentence is plainly unreasonable. . Section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), is amended— in subsection (c)— in paragraph (1)— in subparagraph (C)(vii), by striking and at the end; in subparagraph (D), by striking the period at the end and inserting ; and ; and by adding at the end the following new subparagraph: the applicable sentencing parameters or sentencing criteria prescribed under this section. ; by striking paragraphs
(2)through
(4)and inserting the following new paragraphs: Except as provided in subparagraph (B), in a general or special court-martial in which the accused is convicted of an offense for which there is a sentencing parameter under subsection (d), the military judge shall sentence the accused for that offense within the applicable parameter. The military judge may impose a sentence outside a sentencing parameter upon finding specific facts that warrant such a sentence. If the military judge imposes a sentence outside a sentencing parameter under this subparagraph, the military judge shall include in the record a written statement of the factual basis for the sentence. In a general or special court-martial in which the accused is convicted of an offense for which there are sentencing criteria under subsection (d), the military judge shall consider the applicable sentencing criteria in determining the sentence for that offense. In announcing the sentence under section 853 of this chapter (article 53) in a general or special court-martial, the military judge shall, with respect to each offense of which the accused is found guilty, specify the term of confinement, if any, and the amount of the fine, if any. If the accused is sentenced to confinement for more than one offense, the military judge shall specify whether the terms of confinement are to run consecutively or concurrently. Sentencing parameters and sentencing criteria shall not apply to a determination of whether an offense should be punished by death. If an offense is subject to a sentence of confinement for life, a court-martial may impose a sentence of confinement for life without eligibility for parole. An accused who is sentenced to confinement for life without eligibility for parole shall be confined for the remainder of the accused’s life unless— the sentence is set aside or otherwise modified as a result of— action taken by the convening authority or the Secretary concerned; or any other action taken during post-trial procedure or review under any other provision of subchapter IX of this chapter; the sentence is set aside or otherwise modified as a result of action taken by a court of competent jurisdiction; or the accused receives a pardon or another form of Executive clemency. ; by redesignating subsection
(d)as subsection (e); by inserting after subsection
(c)the following new subsection: The President shall prescribe regulations establishing sentencing parameters and sentencing criteria in accordance with this subsection. Such parameters and criteria— shall cover sentences of confinement; and may cover lesser punishments, as the President determines appropriate. Sentencing parameters established under paragraph
(1)shall— identify a delineated sentencing range for an offense that is appropriate for a typical violation of the offense, taking into consideration— the severity of the offense; the guideline or offense category that would apply to the offense if the offense were tried in a United States district court; any military-specific sentencing factors; and the need for the sentencing parameter to be sufficiently broad to allow for individualized consideration of the offense and the accused; include no fewer than five and no more than twelve offense categories; assign each offense under this chapter to an offense category unless the offense is identified as unsuitable for sentencing parameters under paragraph (4)(F)(ii); delineate the confinement range for each offense category by setting an upper confinement limit and a lower confinement limit; and be neutral as to the race, color, religion, national origin, ethnicity, gender, gender identity, disability, sexual orientation, and socioeconomic status of offenders. Sentencing criteria established under paragraph
(1)shall identify offense-specific factors the military judge should consider and any collateral effects of available punishments that may aid the military judge in determining an appropriate sentence when there is no applicable sentencing parameter for a specific offense. There is established within the Department of Defense a board, to be known as the Military Sentencing Parameters and Criteria Board (referred to in this subsection as the Board ). The Board shall have five voting members, as follows: The four chief trial judges designated under section 826(g) of this chapter (article 26(g)), except that, if the chief trial judge of the Coast Guard is not available, the Judge Advocate General of the Coast Guard may designate as a voting member a judge advocate of the Coast Guard with substantial military justice experience. A trial judge of the Navy, designated under regulations prescribed by the President, if the chief trial judges designated under section 826(g) of this chapter (article 26(g)) do not include a trial judge of the Navy. A trial judge of the Marine Corps, designated under regulations prescribed by the President, if the chief trial judges designated under section 826(g) of this chapter (article 26(g)) do not include a trial judge of the Marine Corps. The Chief Judge of the Court of Appeals for the Armed Forces, the Chairman of the Joint Chiefs of Staff, and the General Counsel of the Department of Defense shall each designate one nonvoting member of the Board. The Secretary of Defense shall designate one voting member as chair of the Board and one voting member as vice-chair. An affirmative vote of at least three members is required for any action of the Board under this subsection. The Board shall have the following duties: As directed by the President, the Board shall submit to the President for approval— sentencing parameters for all offenses under this chapter (other than offenses that the Board identifies as unsuitable for sentencing parameters in accordance with clause (ii)); and sentencing criteria to be used by military judges in determining appropriate sentences for offenses that are identified as unsuitable for sentencing parameters in accordance with clause (ii). Identify each offense under this chapter that is unsuitable for sentencing parameters. The Board shall identify an offense as unsuitable for sentencing parameters if— the nature of the offense is indeterminate and unsuitable for categorization; and there is no similar criminal offense under the laws of the United States or the laws of the District of Columbia. In developing sentencing parameters and criteria, the Board shall consider the sentencing data collected by the Military Justice Review Panel pursuant to section 946(f)(2) of this chapter (article 146(f)(2)). In addition to establishing parameters for sentences of confinement under clause (i)(I), the Board shall consider the appropriateness of establishing sentencing parameters for punitive discharges, fines, reductions, forfeitures, and other lesser punishments authorized under this chapter. The Board shall regularly— review, and propose revision to, in consideration of comments and data coming to the Board’s attention, the sentencing parameters and sentencing criteria prescribed under paragraph (1); and submit to the President, through the Secretary of Defense, proposed amendments to the sentencing parameters and sentencing criteria, together with statements explaining the basis for the proposed amendments. The Board shall develop means of measuring the degree to which applicable sentencing, penal, and correctional practices are effective with respect to the sentencing factors and policies set forth in this section. In fulfilling its duties and in exercising its powers, the Board shall consult authorities on, and individual and institutional representatives of, various aspects of the military criminal justice system. The Board shall establish separate advisory groups consisting of individuals with current or recent experience in command and in senior enlisted positions, individuals with experience in the trial of courts-martial, and such other groups as the Board deems appropriate. The Board shall submit to the President, through the Secretary of Defense, proposed amendments to the rules for courts-martial with respect to sentencing proceedings and maximum punishments, together with statements explaining the basis for the proposed amendments. The Board may issue non-binding policy statements to achieve the Board’s purposes and to guide military judges in fashioning appropriate sentences, including guidance on factors that may be relevant in determining where in a sentencing parameter a specification may fall, or whether a deviation outside of the sentencing range may be warranted. The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply with respect to the Board or any advisory group established by the Board. ; and in subsection (e)(1), as redesignated by paragraph
(2)of this subsection— in subparagraph (A), by striking or at the end; by redesignating subparagraph
(B)as subparagraph (C); by inserting after subparagraph
(A)the following new subparagraph: in the case of a sentence for an offense with a sentencing parameter under this section, the sentence is a result of an incorrect application of the parameter; or ; and in subparagraph (C), as redesignated by subparagraph
(B)of this paragraph, by striking , as determined in accordance with standards and procedures prescribed by the President . Section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice) is amended— in subsection (d)(1)(A), by striking the third sentence; and by amending subsection
(e)to read as follows: In considering a sentence on appeal, other than as provided in section 856(e) of this chapter (article 56(e)), the Court of Criminal Appeals may consider— whether the sentence violates the law; whether the sentence is inappropriately severe— if the sentence is for an offense for which there is no sentencing parameter under section 856(d) of this chapter (article 56(d)); or in the case of an offense with a sentencing parameter under section 856(d) of this chapter (article 56(d)), if the sentence is above the upper range of such sentencing parameter; in the case of a sentence for an offense with a sentencing parameter under section 856(d) of this chapter (article 56(d)), whether the sentence is a result of an incorrect application of the parameter; whether the sentence is plainly unreasonable; and in review of a sentence to death or to life in prison without eligibility for parole determined by the members in a capital case under section 853(c) of this chapter (article 53(c)), whether the sentence is otherwise appropriate, under rules prescribed by the President. In an appeal under this subsection or section 856(e) of this chapter (article 56(e)), other than review under subsection (b)(2), the record on appeal shall consist of— any portion of the record in the case that is designated as pertinent by any party; the information submitted during the sentencing proceeding; and any information required by rule or order of the Court of Criminal Appeals. . Section 863(c) of title 10, United States Code (article 63(c) of the Uniform Code of Military Justice) is amended by striking section 856(d) of this title (article 56(d)) and inserting section 856(e) of this chapter (article 56(e)) . Section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice), as amended by subsection (d), is further amended by striking section 856(d) of this title (article 56(d)) each place it appears and inserting section 856(e) of this chapter (article 56(e)) . The amendments made by this section shall take effect on the date that is two years after the date of the enactment of this Act and shall apply to sentences adjudged in cases in which all findings of guilty are for offenses that occurred after the date that is two years after the date of the enactment of this Act. The President shall prescribe regulations setting forth the sentencing parameters and criteria required by subsection
(d)of section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), as added by subsection
(c)of this section. The regulations under subparagraph
(A)shall take effect on a date determined by the President which shall be not later than four years after the date of enactment of this Act and shall apply only to sentences adjudged in cases in which all findings of guilty are for offenses that occurred after the date on which the regulations required by subparagraph
(A)take effect. If the regulations required by subparagraph
(A)have not been prescribed as of the date on which the amendments made by this section take effect under paragraph (1), each sentence adjudged in accordance with the amendments made by this section and the terms of the effective date under paragraph
(1)shall be made as if no sentencing parameter or criteria for that offense has been prescribed until such time as such regulations are issued that include such a sentencing parameter or criteria. Section 537 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 116–92 ; 133 Stat. 1363; 10 U.S.C. 856 note) is repealed.
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