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When Congress enacted the Uniform Code of Military Justice (UCMJ) in 1950

When Congress enacted the Uniform Code of Military Justice (UCMJ) in 1950, neither the President nor Congress realized that the UCMJ would force the military to adopt plea-bargaining.3 After all, Congress enacted the UCMJ to level the playing field in contested trials and enhance appellate review.4 The UCMJ did not even mention pleabargaining in 1950,5 and the Manual for Courts-Martial (MCM) did not discuss the practice until 1960.6 While this may surprise current judge
advocates, there was simply no precedent for plea-bargaining in the military in 1950-1951.7 As the drafters of both documents focused on correcting past abuses in contested cases,8 they failed to consider the impact of suddenly expanding the due process rights in a military justice system, when the Army alone would try over 100,000 courts-martial in
its first year of the UCMJ’s implementation.9 3 Uniform Code of Military Justice, Pub. L. No. 81-506, 64 Stat. 

The UCMJ was drafted in response to complaints of unjust treatment raised by large numbers of World War II veterans. Many veterans who had never been in trouble in civilian life, found themselves behind bars or separated from the service with less than honorable discharges because of military offenses. After the war concluded, Congress held hearings on reforming the military justice system—the UCMJ was the result. SeeJAGC HISTORY, supra note 4, at 194-200.
9 The UCMJ became effective on 31 May 1951. See Uniform Code of Military Justice, Pub. L. No. 81-506, 64 Stat. 107 (1950); JAGC HISTORY, supra note 4, at 203. Its first year of implementation crossed fiscal year (FY) 1950 and 1951. At the end of FY 1950, the active duty strength of the Army was 632,000. general courts-martial, 5,838 special courts-martial, and 59,961 summary courts-martial for a total of 72,568 courts-martial. Id. So in terms of courts-martial per 1000 troops, the Army tried 114.82 Soldiers for every 1000 Soldiers on active duty. Id. At the end of FY 1951, the active

2004 PLEA BARGAINING IN THE MILITARY

During the 175 years that preceded the enactment of the UCMJ, the military used the Articles of War to punish misconduct.10 Under the Articles, military justice was “command-dominated” and served the commander’s will.11 Courts-martial “had few of the procedures and protections of civilian criminal justice, and protecting the rights of the
individual was not a primary purpose of the system.”12 Rather, the system was designed to “secure obedience to the commander,” and to swiftly punish those who opposed him.13 Judged by these standards, the old system worked extremely well it obtained convictions in better than ninety percent of contested cases.14 Punishment was swift because there was little, if any, appellate review.15 So from the commander’s perspective, there was no need for the distasteful practice of plea-bargaining.16 All this changed, however, duty strength of the Army was 859,000. Id. During that FY the Army tried 5,206 general courts-martial, 27,404 special courts-martial, and 79,226 summary courts-martial for a total of 111,836 courts-martial; and the rate of courts-martial per 1000 troops was 130.19. Id.

A copy of each annual report from 1952 through 1977 is on file with United States Court of Appeals for the Armed Forces. Annual reports for 1978 and thereafter are reprinted in the Military Justice Reporter, or are available on line (1997-2002) at http://www.armfor. uscourts.gov. The average Army active duty strength for FY 2002 includes 486,500
Regular Army and 30,099 mobilized Reserve Component Soldiers. In comparison to the number of courts-martial conducted in FY 1950-1951, the FY 2002 courts-martial rate is extremely light. During FY 2002, the Army tried only 788 general courts-martial, 602 special courts-martial, and 858 summary courts-martial for a total of 2248 courts-martial;
and its courts-martial rate per 1000 troops was a mere 4.35. ANN. REP. (2002), supra this note at 39-40. The courts-martial rate per 1000 troops was obtained by dividing the total courts-martial by the average Army strength, that is,
14 Based on the figures cited in AD HOC COMMISSION, supra note 9, at 251-52, in FYs 1945 through 1950, the conviction rate for general courts-martial averaged ninety-three percent, and never dropped below ninety percent.
15 See Cooke, supra note 4, at 5-6; JAGC HISTORY, supra note 4, at 125-30. The Army instituted the first military appellate review system in January 1918. The appeal consisted of a review by the OTJAG in capital and other serious cases. This limited review was a response to the outcry that occurred when thirteen African-American Soldiers were hanged for mutiny the day after their court-martial adjourned. 16 Cf. Hughes, supra note 7, at 1 (“In the military system [plea-bargains] are suspect. The archaic shibboleth: ‘You cannot bargain with this court’ still obtains.”