Rule for Courts-Martial (RCM) 1002 establishes the military justice system’s new sentencing procedures. With the exception of death penalty cases, the military justice system has transitioned to judge-alone sentencing. That is, members will still determine the findings of the court-martial (guilty or not guilty), but the military judge will determine the sentence following the appropriate parameters and criteria using the parameters and criteria developed by the Military Sentencing Parameters and Criteria Board. The determination of sentencing parameters involves identifying a defined range appropriate for a typical violation of an offense. These parameters consider factors like the offense’s severity, the guideline applicable if tried in a U.S. district court, military-specific sentencing elements, the necessity for broad parameters enabling individualized consideration of the offense and accused, and other pertinent sentencing guidelines. Conversely, sentencing criteria are established by identifying offense-specific factors for the military judge to consider, along with any collateral effects of potential punishments. This aids the military judge in determining an appropriate sentence in cases where no applicable sentencing parameter exists for a particular offense.
Offenses under the UCMJ are now broken into 6 Categories, each carrying its own sentencing range.
- Category 1: 0–12 months confinement
- Category 2: 1–36 months confinement
- Category 3: 30–120 months confinement
- Category 4: 120–240 months confinement
- Category 5: 240–480 months confinement
- Category 6: Confinement for life with eligibility for parole
As described in RCM 1002(a)(2)(B), in cases where an offense is governed by sentencing parameters, the military judge is obligated to sentence the accused within the relevant parameter or confinement range, unless specific facts are identified that justify a sentence outside of this range. Such factors might involve evidence in aggravation or mitigation, or may be rooted in the sentencing considerations outlined in RCM 1002(f). In either circumstance, the military judge must document written findings detailing the factual basis for a sentence that deviates from the applicable parameter, and these findings must be incorporated into the record.
Grover H. Baxley is the founding attorney of JAG Defense and a former active duty judge advocate in the Air Force. In 2005, Mr. Baxley chose to leave active duty and dedicate 100% of his civilian law practice to military and security clearance law. He has zealously represented thousands of members of all military branches around the world in matters ranging from minor administrative actions to courts-martial.
