Section 3 — Special Considerations | Manual for Courts-Martial

Appendix 2.1 · Disposition Guidance

Section 3. Special Considerations

2024 Manual for Courts-Martial, United States

3.1. Prosecution in Another Jurisdiction When the accused is subject to effective prosecution in another jurisdiction, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice. Additionally, a referral authority should consider the following additional factors when determining disposition:

(a) The strength of the other jurisdiction’s interest in prosecution;

(b) The other jurisdiction’s ability and willingness to prosecute the case effectively;

(d) The views of the victim of the alleged offense, if any, as to the desirability of prosecution in the other jurisdiction;

(e) Applicable policies derived from agreements with the Department of Justice and foreign governments regarding the exercise of military jurisdiction; and

(f) The likelihood that the nature of the proceedings in the other jurisdiction will satisfy the interests of justice and good order and discipline in the case, including any burdens on the command with respect to the need for witnesses to be absent from their military duties, and the potential for swift or delayed disposition in the other jurisdiction.

3.2. Plea Agreements In accordance with Article 53a, the referral authority may enter into an agreement with an accused concerning disposition of the charges and specifications and the sentence that may be imposed. A convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice. Additionally, a referral authority should consider the following additional factors in determining whether it would be appropriate to enter into a plea agreement in a particular case:

(a) The accused’s willingness to cooperate in the investigation or prosecution of others;

(b) The nature and seriousness of the charged offense or offenses;

(d) Restitution, if any;

(e) The accused’s criminal history or history of misconduct, whether military or civilian;

(f) The desirability of prompt and certain disposition of the case and of related cases;

(g) The likelihood of obtaining a finding of guilty at court-martial;

(h) The probable effect on victims of alleged offenses and witnesses;

(i) The probable sentence or other consequences if the accused is convicted;

(j) The public and military interest in having the case tried rather than disposed of by a plea agreement;

(k) The time and expense associated with trial and appeal;

(l) The views of the victim of an alleged offense with regard to prosecution, the terms of the anticipated agreement, and alternative disposition; and

(m) The potential of the accused for rehabilitation and continued service.

3.3. Agreements Concerning Disposition of Charges and Specifications With respect to plea agreements regarding the disposition of charges and specifications, the plea agreement should require the accused to plead guilty to charges and specifications that:

(a) Appropriately reflect the nature and extent of the criminal conduct;

(b) Are supported by an adequate factual basis;

(d) Do not adversely affect the investigation or prosecution of others suspected of misconduct; and

(e) Appropriately serve the interests of justice and good order and discipline.

3.4. Agreements Concerning Sentence Limitations A plea agreement should ensure that any sentence limitation takes into consideration the sentencing guidance set forth in Article 56(c).

Analysis This appendix implements Article 33, UCMJ, as amended by Section 5204 of the Military Justice Act of 2016, Division E of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), and section 12 of Executive Order 13825 of March 1, 2018. The disposition factors contained in this appendix are adapted primarily from three sources: the Principles of Federal Prosecution issued by the Department of Justice; the American Bar Association, Criminal Justice Standards for the Prosecution Function; and the National District Attorneys Association, National Prosecution Standards. Practitioners are encouraged to familiarize themselves with the disposition factors contained in this appendix as well as those related civilian prosecution function standards. The disposition factors have been adapted with a view toward the unique nature of the military justice system.