Sec. 539E. SENTENCING REFORM
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## SEC. 539E SENTENCING REFORM ###
(a)Article 53; Findings and Sentencing Section 853 of title 10, United States Code (article 53 of the Uniform Code of Military Justice), is amended— ####
(1)in subsection (b), by amending paragraph
(1)to read as follows: > > #### “(1) General and special courts-martial > > 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.” > ; and ####
(2)in subsection (c)— #####
(A)by amending paragraph
(1)to read as follows: > > #### “(1) In general > > In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death— > > > ##### “(A) > > the members shall determine— > > > ###### “(i) > > whether the sentence for that offense shall be death or life in prison without eligibility 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).” > ; and #####
(B)in paragraph (2), by striking “the court-martial” and inserting “the military judge”. ###
(b)Article 53a; Plea Agreements Section 853a of title 10, United States Code (article 53a of the Uniform Code of Military Justice), as amended by section 539 of this Act, is further amended— ####
(1)by redesignating subsections (b), (c), and (d), as subsections (c), (d), and (e), respectively; and ####
(2)by inserting after subsection
(a)the following new subsection: > > ### “(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 sentencing parameter set forth in regulations prescribed 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 parameter 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 parameter 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 if the military judge determines that the proposed sentence is plainly unreasonable.” > . ###
(c)Article 56; Sentencing Section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), is amended— ####
(1)in subsection (c)— #####
(A)in paragraph (1)— ######
(i)in subparagraph (C)(vii), by striking “and” at the end; ######
(ii)in subparagraph (D), by striking the period at the end and inserting “; and”; and ######
(iii)by adding at the end the following new subparagraph: > > ##### “(E) > > the applicable sentencing parameters or sentencing criteria set forth in regulations prescribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022.” > ; and #####
(B)by striking paragraphs
(2)through
(4)and inserting the following new paragraphs: > > #### “(2) Application of sentencing parameters in general and special courts-martial > > > ##### “(A) Requirement to sentence within parameters > > Except as provided in subparagraph (B), in a general or special court-martial in which the accused is convicted of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge shall sentence the accused for that offense within the applicable parameter. > > > ##### “(B) Exception > > 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. > > > #### “(3) Use of sentencing criteria in general and special courts-martial > > In a general or special court-martial in which the accused is convicted of an offense for which the President has established sentencing criteria pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge shall consider the applicable sentencing criteria in determining the sentence for that offense. > > > #### “(4) Offense-based sentencing in general and special courts-martial > > In announcing the sentence under section 853 of this title (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. > > > #### “(5) Inapplicability to death penalty > > Sentencing parameters and sentencing criteria shall not apply to a determination of whether an offense should be punished by death. > > > #### “(6) Sentence of confinement for life without eligibility for parole > > > ##### “(A) In general > > 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. > > > ##### “(B) Term of confinement > > 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— > > > ###### “(i) > > the sentence is set aside or otherwise modified as a result of— > > > ###### “(I) > > action taken by the convening authority or the Secretary concerned; or > > > ###### “(II) > > any other action taken during post-trial procedure or review under any other provision of subchapter IX of this chapter; > > > ###### “(ii) > > the sentence is set aside or otherwise modified as a result of action taken by a court of competent jurisdiction; or > > > ###### “(iii) > > the accused receives a pardon or another form of Executive clemency.” > ; and ####
(4)in subsection (d)(1)— #####
(A)in subparagraph (A), by striking “or” at the end; #####
(B)by redesignating subparagraph
(B)as subparagraph (C); #####
(C)by inserting after subparagraph
(A)the following new subparagraph: > > ##### “(B) > > in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the sentence is a result of an incorrect application of the parameter; or” > ; and #####
(D)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”. ###
(d)Article 66; Courts of Criminal Appeals Section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice), as amended by section 539A of this Act, is further amended— ####
(1)in subsection (d)(1)(A), by striking the third sentence; and ####
(2)by amending subsection
(e)to read as follows: > > ### “(e) Consideration of Sentence > > > #### “(1) In general > > In considering a sentence on appeal, other than as provided in section 856(d) of this title (article 56(d)), the Court of Criminal Appeals may consider— > > > ##### “(A) > > whether the sentence violates the law; > > > ##### “(B) > > whether the sentence is inappropriately severe— > > > ###### “(i) > > if the sentence is for an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022; or > > > ###### “(ii) > > in the case of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, if the sentence is above the upper range of such sentencing parameter; > > > ##### “(C) > > in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, whether the sentence is a result of an incorrect application of the parameter; > > > ##### “(D) > > whether the sentence is plainly unreasonable; and > > > ##### “(E) > > 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 title (article 53(c)), whether the sentence is otherwise appropriate, under rules prescribed by the President. > > > #### “(2) Record on appeal > > In an appeal under this subsection or section 856(d) of this title (article 56(d)), other than review under subsection (b)(2) of this section, the record on appeal shall consist of— > > > ##### “(A) > > any portion of the record in the case that is designated as pertinent by any party; > > > ##### “(B) > > the information submitted during the sentencing proceeding; and > > > ##### “(C) > > any information required by rule or order of the Court of Criminal Appeals.” > . ###
(e)Establishment of Sentencing Parameters and Sentencing Criteria **[**[10 U.S.C. 856 note](/us/usc/t10/s856)**]** ####
(1)In general Not later than two years after the date of the enactment of this Act, the President shall prescribe regulations establishing sentencing parameters and sentencing criteria related to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), in accordance with this subsection. Such parameters and criteria— #####
(A)shall cover sentences of confinement; and #####
(B)may cover lesser punishments, as the President determines appropriate. ####
(2)Sentencing parameters Sentencing parameters established under paragraph
(1)shall— #####
(A)identify a delineated sentencing range for an offense that is appropriate for a typical violation of the offense, taking into consideration— ######
(i)the severity of the offense; ######
(ii)the guideline or offense category that would apply to the offense if the offense were tried in a United States district court; ######
(iii)any military-specific sentencing factors; ######
(iv)the need for the sentencing parameter to be sufficiently broad to allow for individualized consideration of the offense and the accused; and ######
(v)any other relevant sentencing guideline. #####
(B)include no fewer than 5 and no more than 12 offense categories; #####
(C)assign such offense under this chapter to an offense category unless the offense is identified as unsuitable for sentencing parameters under paragraph (4)(F)(ii); and #####
(D)delineate the confinement range for each offense category by setting an upper confinement limit and a lower confinement limit. ####
(3)Sentencing criteria 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. ####
(4)Military sentencing parameters and criteria board #####
(A)In general 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”). #####
(B)Voting members The Board shall have 5 voting members, as follows: ######
(i)The 4 chief trial judges designated under section 826(g) of title 10, United States Code (article 26(g) of the Uniform Code of Military Justice), 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. ######
(ii)A trial judge of the Navy, designated under regulations prescribed by the President, if the chief trial judges designated under section 826(g) of title 10, United States Code (article 26(g) of the Uniform Code of Military Justice), do not include a trial judge of the Navy. ######
(iii)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 title 10, United States Code (article 26(g) of the Uniform Code of Military Justice), do not include a trial judge of the Marine Corps. #####
(C)Nonvoting members 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 may appoint one additional nonvoting member of the Board at the Secretary’s discretion. #####
(D)Chair and vice-chair The Secretary of Defense shall designate one voting member as chair of the Board and one voting member as vice-chair. #####
(E)Voting requirement An affirmative vote of at least three members is required for any action of the Board under this subsection. #####
(F)Duties of board The Board shall have the following duties: ######
(i)As directed by the Secretary of Defense, the Board shall submit to the President for approval— ######
(I)sentencing parameters for all offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) (other than offenses that the Board identifies as unsuitable for sentencing parameters in accordance with clause (ii)); and ######
(II)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). ######
(ii)Identify each offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that is unsuitable for sentencing parameters. The Board shall identify an offense as unsuitable for sentencing parameters if— ######
(I)the nature of the offense is indeterminate and unsuitable for categorization; and ######
(II)there is no similar criminal offense under the laws of the United States or the laws of the District of Columbia. ######
(iii)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 title 10, United States Code (article 146(f)(2) of the Uniform Code of Military Justice). ######
(iv)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 chapter 47 of title 10, United States Code (the Uniform Code of Military Justice). ######
(v)The Board shall regularly— ######
(I)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 ######
(II)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. ######
(vi)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. ######
(vii)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 may 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. ######
(viii)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. ###
(f)Effective Date **[**[10 U.S.C. 853 note](/us/usc/t10/s853)**]** 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. ###
(g)Repeal of Secretarial Guidelines on Sentences for Offenses Committed Under the Uniform Code of Military Justice 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. ### PART 3 REPORTS AND OTHER MATTERS
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- 133 Stat. 1363
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