Pretrial agreements in the military justice system serve a function similar to plea bargains in civilian courts, but the structure and rules governing them are distinct. A service member who enters a pretrial agreement agrees to plead guilty to specified charges in exchange for a promise from the convening authority about the maximum punishment that will be approved. The military judge independently reviews the agreement and must determine that the plea is knowing and voluntary before accepting it.
The terms of a pretrial agreement can address many aspects of the case, including the charges to which the accused will plead, the maximum sentence the convening authority will approve, and in some cases the characterization of discharge. What cannot be negotiated away is the military judge’s independent assessment of whether the factual basis for the plea is adequate. Understanding what a pretrial agreement can and cannot accomplish is essential for evaluating whether accepting one serves the accused’s interests better than proceeding to trial.
Pretrial Agreements Under the UCMJ and How They Work
A pretrial agreement is a written contract between the accused and the convening authority that specifies the terms on which the accused will plead guilty and the terms on which the convening authority will limit the punishment that may be approved after sentencing. The agreement must be submitted to and approved by the military judge before the guilty plea is accepted. The judge reviews the agreement to ensure that it is consistent with the law, that the accused understands its terms, and that the plea itself has an adequate factual basis.
The convening authority is the party on the government’s side of the agreement. The trial counsel, who prosecutes the case, is not a party and cannot independently offer or withdraw terms. This structure means that effective negotiation of a pretrial agreement requires engaging directly with the convening authority’s office, typically through the staff judge advocate, rather than negotiating with the prosecutor who will appear at trial. Defense attorneys who understand this dynamic, and who have experience with the specific conventions that govern military pretrial negotiations, are significantly better positioned to obtain favorable terms.
What the Accused Can and Cannot Negotiate
A pretrial agreement can address the charges to which the accused will plead guilty, the maximum sentence the convening authority will approve, and in some cases the forum in which the case will be adjudicated. What the agreement cannot do is bind the military judge to accept a specific sentence, eliminate the judge’s obligation to ensure the plea has an adequate factual basis, or remove the accused’s right to withdraw the plea if the judge determines that the agreement is inconsistent with the law.
Sentence caps are among the most valuable provisions a defense attorney can negotiate. A service member who pleads guilty and receives a higher sentence than what is specified in the agreement will have their sentence reduced by the convening authority to comply with the cap. This protection against unexpectedly severe sentencing is what makes a well-negotiated agreement valuable even when the accused could potentially win at trial.
The Military Judge’s Role in Reviewing Pretrial Agreements
The military judge’s review of a pretrial agreement is not merely procedural. The judge must personally inquire of the accused to ensure the agreement was entered voluntarily, that the accused understands its terms, and that the guilty plea has a factual basis that satisfies every element of every charged offense. If the accused cannot articulate facts that establish an element, the judge cannot accept the plea, and the pretrial agreement may unravel at the moment of the plea inquiry.
This means that preparation for a guilty plea is as demanding as preparation for a contested trial. Defense counsel must ensure the accused can accurately describe the factual basis for each element of each offense, understands which rights are being waived, and is prepared to respond accurately to the judge’s questions without creating inconsistencies that could invalidate the plea.
How Sentencing Caps Are Set in Military Plea Agreements
Sentencing caps are negotiated based on the defense’s assessment of the realistic sentencing range at trial, the convening authority’s interest in resolving the case, and the specific facts that bear on an appropriate punishment. Defense counsel who negotiate sentencing caps must understand the applicable maximum punishments, the typical sentencing patterns at the specific installation, and the specific aggravating and mitigating factors in the client’s case.
A cap that reflects a realistic assessment of the sentencing exposure at trial provides meaningful protection against the worst outcomes. A cap set without that analysis may not protect the accused in the way they believed it would.
When Accepting a Pretrial Agreement Is the Right Strategic Decision
Accepting a pretrial agreement is the right strategic decision when the realistic range of outcomes at trial includes a significant probability of a worse result than what the agreement offers. The analysis requires an honest assessment of the evidence, the applicable law, the specific fact-finder, and the sentencing exposure. In cases where conviction is likely and the maximum punishment is severe, an agreement that caps the sentence at a level the client can manage may serve their long-term interests better than a trial that could end in an outcome that is much worse.
The decision must also account for the collateral consequences of conviction, which may be as significant as the criminal sentence. A defense attorney who helps a client evaluate not only the sentence cap but the complete range of consequences flowing from the conviction under the agreement is giving the client the information needed to make a fully informed decision.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.