NCJ Number
55075
Journal
FEDERAL BAR JOURNAL Volume: 37 Issue: 1 Dated: (WINTER 1978) Pages: 49-60
Date Published
1977
Length
12 pages
Annotation
THE APPLICATION OF THE PLEA NEGOTIATION PROCESS IN THE MILITARY, PARTICULARLY IN THE U.S. ARMY, IS DISCUSSED, AND GUILTY PLEA PROCEDURES AND PRETRIAL AGREEMENTS ARE CONSIDERED.
Abstract
IN 1953, USE OF PRETRIAL AGREEMENTS WERE RECOMMENDED TO RELIEVE OVERCROWDED DOCKETS OF CONTESTED CASES IN THE U.S. ARMY. IMPLEMENTATION OF THE PLEA BARGAINING PROCESS WAS LEFT TO THE DISCRETION OF VARIOUS COURT MARTIAL AUTHORITIES. AS A RESULT OF THE USE OF PRETRIAL AGREEMENTS, NEGOTIATED PLEAS ARE AS COMMON IN THE MILITARY AS THEY ARE IN CIVILIAN CRIMINAL JURISDICTIONS. DECIDING HOW TO PLEAD IS ONE OF THE MOST IMPORTANT DECISIONS THE ACCUSED PERSON MUST MAKE IN THE COURT MARTIAL PROCESS. A PRETRIAL AGREEMENT REPRESENTS A CONTRACT BETWEEN THE CONVENING AUTHORITY AND THE ACCUSED PERSON IN WHICH THE ACCUSED AGREES TO PLEAD GUILTY IN RETURN FOR THE AUTHORITY'S PROMISE TO APPROVE A SPECIFIED AMOUNT OF PUNISHMENT. ONCE PRELIMINARY NEGOTIATIONS ARE COMPLETED AND THE AUTHORITY HAS AGREED TO THE ACCUSED'S OFFER TO PLEAD GUILTY, AN AGREEMENT MUST BE PUT IN WRITING. IN THE FIRST PART OF AN AGREEMENT, ACCUSED PERSONS ACKNOWLEDGE THAT CHARGES AND EVIDENCE HAVE BEEN EXAMINED BY THEM AND DEFENSE COUNSEL, THAT THEY HAVE CONSULTED WITH COUNSEL, AND THAT THEY WILL PLEAD GUILTY AFTER BEING FULLY ADVISED OF LEGAL AND MORAL RIGHTS TO PLEAD NOT GUILTY. IN THE SECOND PART OF AN AGREEMENT, SENTENCE LIMITATIONS AGREED TO BY THE AUTHORITY IN RETURN FOR THE ACCUSED PERSON'S PLEA OF GUILTY ARE SPECIFIED. PROCEDURES FOR NEGOTIATING PRETRIAL AGREEMENTS IN THE MILITARY ARE MARKEDLY DIFFERENT FROM THE CIVILIAN PLEA BARGAINING PROCESS. JUDGES DO NOT PARTICIPATE IN THE MILITARY NEGOTIATION PROCESS, WHILE THEY ACTIVELY PARTICIPATE IN SOME CIVILIAN JURISDICTIONS. BEFORE A PLEA OF GUILTY CAN BE ACCEPTED, MILITARY JUDGES MUST CONDUCT A DETAILED AND EXPLICIT INQUIRY OF THE ACCUSED CONCERNING A PLEA. THIS PROCEDURE IS REFERRED TO AS THE PROVIDENCY INQUIRY AND IS CONDUCTED BY MILITARY JUDGES OUTSIDE THE PRESENCE OF COURT MEMBERS. TRIAL JUDGES ARE REQUIRED TO SHARE IN THE RESPONSIBILITY FOR ASSURING THAT THE ACCUSED HAS ENTERED INTO A PROPER AGREEMENT WITH THE CONVENING AUTHORITY. THEY MUST COLLABORATE WITH APPELLATE COURTS IN MONITORING TERMS OF PRETRIAL AGREEMENTS TO INSURE COMPLIANCE WITH STATUTORY AND DECISIONAL LAW AND ADHERENCE TO BASIC CONCEPTS OF FUNDAMENTAL FAIRNESS. PRETRIAL AGREEMENTS ARE ESSENTIAL TO THE ADMINISTRATION OF JUSTICE, AND A NEGOTIATED PLEA IN THE MILITARY THAT HAS BEEN VOLUNTARILY AND PROVIDENTLY ENTERED BY THE ACCUSED PERSON GUARANTEES BENEFITS DERIVED FROM A SENTENCE LIMITING AGREEMENT. CASE LAW IS REVIEWED. (DEP)