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

14 Pages Posted: 12 Jul 2012 Last revised: 7 Sep 2012

See all articles by David Frakt

David Frakt

US Air Force JAG Corps Reserve

Date Written: July 11, 2012


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.

Keywords: UCMJ, Article 106, Article 118, mandatory minimum sentences, mandatory death penalty

Suggested Citation

Frakt, David, When Mandatory Isn’t Required: Mandatory Sentences under the UCMJ (July 11, 2012). U. of Pittsburgh Legal Studies Research Paper No. 2012-23, Available at SSRN: https://ssrn.com/abstract=2103943 or http://dx.doi.org/10.2139/ssrn.2103943

David Frakt (Contact Author)

US Air Force JAG Corps Reserve ( email )

United States

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