When Mandatory Isn’t Required: Mandatory Sentences under the UCMJ

Abstract

Unlike the federal guidelines system, and many state sentencing regimes, the Uniform Code of Military Justice (UCMJ) typically vests unfettered discretion with the sentencing authority, limited only by the statutorily authorized maximum for the offenses of which the accused is convicted. Indeed, “no punishment” is an authorized punishment for virtually every offense under the UCMJ, and the members are advised of this option in the standard jury instructions. There are two exceptions to this general rule of broad sentencing discretion. The UCMJ prescribes a mandatory sentence for one crime, and a mandatory minimum sentence for two other offenses. Specifically, the UCMJ imposes a mandatory death penalty for a conviction of Article 106, Spies, and a mandatory minimum of a life sentence with the possibility of parole for a violation of Article 118, subsection (1) premeditated murder, or subsection (4) felony murder. In this article, I explore how these “mandatory” sentencing terms operate in practice, and consider the various pathways around the statutorily mandated sentences.