Amendment of Section
Pub. L. 117–81, div. A, title V, § 539E(c), (f), Dec. 27, 2021, 135 Stat. 1701, 1706, provided that, effective 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, this section 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
(2) 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 striking “, as determined in accordance with standards and procedures prescribed by the President”.
See 2021 Amendment notes below.
The word “may” is substituted for the word “shall”.
Editorial Notes
Amendments
2021—Subsec. (b)(1). Pub. L. 117–81, § 1081(a)(14), substituted “subsection (c) of section 853a” for “subsection (d) of section 853a”.
Subsec. (c)(1)(E). Pub. L. 117–81, § 539E(c)(1)(A), added subpar. (E).
Subsec. (c)(2) to (6). Pub. L. 117–81, § 539E(c)(1)(B), added pars. (2) to (6) and struck out former pars. (2) to (4) which related to sentencing by military judge, sentencing by members, and sentence of confinement for life without eligibility for parole, respectively.
Subsec. (d)(1)(B). Pub. L. 117–81, § 539E(c)(4)(C), added subpar. (B). Former subpar. (B) redesignated (C).
Subsec. (d)(1)(C). Pub. L. 117–81, § 539E(c)(4)(D), struck out “, as determined in accordance with standards and procedures prescribed by the President” after “unreasonable”.
Pub. L. 117–81, § 539E(c)(4)(A), (B), redesignated subpar. (B) as (C).
2017—Subsec. (d)(1). Pub. L. 115–91, § 531(e)(1), inserted “and consistent with standards and procedures set forth in regulations prescribed by the President,” after “concerned,” in introductory provisions.
Subsec. (d)(1)(B). Pub. L. 115–91, § 531(e)(2), inserted “, as determined in accordance with standards and procedures prescribed by the President” before period at end.
2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to maximum and minimum sentencing limits.
2013—Pub. L. 113–66 substituted “Maximum and minimum limits” for “Maximum limits” in section catchline, designated existing provisions as subsec. (a), and added subsec. (b).
Statutory Notes and Related Subsidiaries
Establishment of Sentencing Parameters and Sentencing Criteria
Pub. L. 117–81, div. A, title V, § 539E(e), Dec. 27, 2021, 135 Stat. 1704, provided that:
“(1) In general.—Not later than two years after the date of the enactment of this Act [Dec. 27, 2021], 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 [probably should be “
chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice)”] 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:
“(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.
“(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.”
Guidelines on Sentences for Offenses Committed Under the Uniform Code of Military Justice
Pub. L. 116–92, div. A, title V, § 537, Dec. 20, 2019, 133 Stat. 1363, provided that:
“(a) Development of Guidelines.—
Not later than the date specified in subsection (d), the
Secretary of Defense shall develop nonbinding guidelines on sentences for offenses under
chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice). The guidelines shall provide the sentencing authority with a suggested range of punishments, including suggested ranges of confinement, that will generally be appropriate for a violation of each offense under such chapter.
“(c) Submittal to Congress.—Not later than the date specified in subsection (d), the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives—
“(1)
the guidelines for sentences developed under subsection (a); and
“(2)
an assessment of the feasibility and advisability of implementing such guidelines in panel sentencing cases.
“(d) Date Specified.—
The date specified in this subsection is the date that is not later than one year after the date on the which the first report of the
Military Justice Review Panel is submitted to the Committees on Armed Services of the
Senate and the
House of Representatives pursuant to
section 946(f)(5) of title 10, United States Code (article 146(f)(5) of the
Uniform Code of Military Justice).”
[Pub. L. 117–81, div. A, title V, § 539E(f), (g), Dec. 27, 2021, 135 Stat. 1706, provided that, effective 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, section 537 of Pub. L. 116–92, set out above, is repealed. See section 539E(f) of Pub. L. 117–81, set out as an Effective Date of 2021 Amendment note under section 853 of this title.]
Executive Documents
Prescription of Method of Designating a Member of the Military Sentencing Parameters and Criteria Board
Memorandum of President of the United States, June 21, 2022, 87 F.R. 37971, provided:
Memorandum for the Secretary of Defense
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022, Public Law 117–81, 135 Stat. 1541, 1700 (2021) [set out in a note above], I hereby order as follows:
(1) If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Navy, then the Judge Advocate General of the Navy shall designate as a voting member of the Military Sentencing Parameters and Criteria Board (Board) either the Chief Judge of the Department of the Navy or a Navy trial judge assigned to the Navy and Marine Corps Trial Judiciary.
(2) If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Marine Corps, then the Staff Judge Advocate to the Commandant of the Marine Corps, in consultation with the Judge Advocate General of the Navy, shall designate as a voting member of the Board a Marine Corps trial judge assigned to the Navy and Marine Corps Trial Judiciary.
This memorandum constitutes the regulations provided for in subsections (ii) and (iii) of section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022.
You are authorized and directed to publish this memorandum in the Federal Register.
