A plea agreement, also called a plea bargain or pretrial agreement, is when a defendant agrees to plead guilty to some or all the charges in exchange for a lesser punishment. This may include lowering the charge to something less severe or reducing the sentence. Plea agreements also sometimes require the defendant to testify against other defendants.

The question many people have is—can military members take a plea agreement? The short answer to this question is yes.

Military pretrial agreements went into effect in 1953 to relieve overcrowded dockets of contested cases in the Army. Negotiated pleas follow a formal process tailored to the specific features of the military justice system. Bargains typically offer military members a remarkable opportunity for leniency and protection against severe punishments. An estimated 90% of court-martials result in guilty pleas, which is on pace with civilian criminal cases. As such, plea bargaining is critical to ensuring military justice and a fair overall court-martial process.

With this information, you may have some follow-up questions, such as, how does the military justice system allow for plea agreements? What is the overall feeling toward plea bargains in the military? And how does military plea bargaining differ from the civilian process?

How Plea Agreements Work in the Military

The accused and the convening authority may enter a pretrial agreement at any time before the court-martial findings are announced. Some of the promises the convening authority might make in exchange for a guilty plea include:

• Dispose of one or more charges or refrain from referring other charges.
• Limit the sentence imposed for one or more charges and specifications.
• Refer charges to a specific type of court-martial where the sentence is likely to be less severe.
• Refer a potentially capital case as non-capital.

The accused must freely accept all plea agreement provisions and understand the consequences of doing so. Also, the deal cannot deprive the accused of their rights to counsel and due process. A plea agreement only becomes binding when and if a military judge approves it.

Limitations on Plea Agreements in the Military

Military judges don’t accept every pretrial agreement that lands on their desk. In fact, they are required to reject a deal if:

• It contains a provision that has not been agreed upon by both parties.
• It contains a provision that the accused does not understand.
• It contains a sentence that is less than the mandatory minimum as referred to in Article 56 of the Uniform Code of Military Justice (UCMJ). One exception is if the accused substantially assists with investigating or prosecuting another person who has committed a crime.
• It contradicts a regulation set forth by the president regarding the terms, conditions, or other aspects of plea bargains.
• It is prohibited by law.

Controversy Surrounding Plea Agreements

While plea bargaining conserves resources in the military justice system, these deals remain controversial. Some people oppose them, arguing pretrial agreements allow perpetrators to avoid responsibility for their crimes. Others feel that plea bargains can be coercive and undermine an individual’s legal rights, such as the right to a jury trial. Still, several Supreme Court cases have deemed plea agreements constitutional, as long as the deals are made lawfully and result in reasonable, accurate, and consistent sentences.

Civilian Plea Bargaining vs. Military Plea Bargaining

While the results are largely the same, the procedures for negotiating plea agreements in the military differ considerably from those in civilian courts. Here are some of the most significant differences:

• Military judges may not partake in discussions regarding specific terms and conditions of plea bargains, unlike judges in some civilian jurisdictions that actively participate in this process.
• Trial judges share responsibility for ensuring the accused accepts a just agreement with the convening authority. Therefore, they collaborate with appellate courts to ensure fundamental fairness and compliance with statutory and decisional law.
• Before approving a pretrial agreement, military judges explicitly inquire of the accused concerning their guilty plea. This procedure, called a providency inquiry, takes place without other court members present.

Real-World Example of a Military Plea Agreement

Marine Cpl. Thae Ohu was held in pretrial confinement for nearly a year on charges of attempted murder, aggravated assault, and other offenses stemming from an attack in April 2020 on her at-the-time boyfriend. She was released, and the attempted murder charges were dropped in May 2021 as part of a plea agreement.

The victim of Ohu’s attack, Michael Hinesley, a fellow Marine, had called for the charges to be dropped. From the beginning, he sought “intervention, not jail time.” He claimed he had no choice but to call the police to defuse the situation, but he never wanted the Marine Corps to prosecute or reprimand Ohu.

The attack, it appeared, occurred amid a psychological breakdown brought on by severe post-traumatic stress disorder and other issues that developed after a Marine supervisor raped Ohu five years earlier. During the April attack, Ohu chased Hinesley around their shared home with a kitchen knife, stabbing the bedroom door where Hinesley barricaded himself and called the police. According to court testimony, Ohu grabbed the knife with suicidal intentions, but when she confused her boyfriend for the man who raped her, she became enraged and chased him instead.

Ohu was placed in long-term psychiatric care after the assault, but she violated a protective order by visiting Hinesley after her release from care in July 2020. Also, during forced hospitalization, she escaped from her restraints and broke a window.

Ohu pleaded guilty to aggravated assault with a dangerous weapon and several other charges, including the destruction of military property for the hospital incident. She also pleaded guilty to communicating a threat, but that charge was withdrawn. Two specifications of attempted murder and violating a protective order, along with charges of burglary and violating a lawful general order, were also dismissed under the pretrial agreement.

In all, Ohu was sentenced to time served, reduction in rank to E-1, and a bad conduct discharge. However, the military judge on the case recommended suspending the punitive discharge for six months, which would be canceled if Ohu didn’t violate the terms of her suspension. Offering a medical discharge instead would allow Ohu to remain eligible for veteran medical benefits and get the help she needed.

Seek Professional Legal Counsel

Taking a pretrial agreement is not a decision any military member should make alone. If you have been accused of a crime, and now you’re being offered a deal, speak to Joseph L. Jordan, Attorney at Law, before moving forward. Mr. Jordan proudly advocates for military defendants accused of violating articles of the UCMJ. With years of prosecution and defense experience, we are confident we can help you make the best decision for your military career and future.

If you need experienced legal advice, please call us toll-free at 800-580-8034 or 254-221-6411 to speak directly with Mr. Jordan about your case.