Military Newsroom

The Army Became The First Service To Officially Encourage Plea Bargaining

It broke new ground in the following areas: (1) it contained provisions to prevent commanders from “unduly influencing the justice system”;17 (2) the accused was provided with new pretrial and trial rights;18 and (3) appellate review was substantially expanded.19 While civil libertarians applauded these changes,
practitioners quickly realized that these new due process rights came with a price tag—an immense backlog of cases at the trial and appellate levels.

In 1953, the Army became the first service to officially encourage plea-bargaining.20 The adoption of the practice was not an altruistic act, but a pragmatic decision to avoid drowning in a sea of litigation. By the end of the decade, plea-bargaining spread to the Coast Guard and the Navy.21 The Air Force, however, did not officially endorse the practice until 1975.22

20 See MG Shaw Letter, supra note 2. This action is viewed as the first step in the development of negotiated guilty plea practice in the military. See Gary N. Keveles, Bargained Justice in the Military: A Study of Practices and Outcomes in the U. S. Army, Europe 1, 1 (1981) (a dissertation submitted to the School of Criminal Justice, State University of New York at Albany) (on file with University Microfilms International, Ann Arbor, Michigan); Kenneth D. Gray, Negotiated Pleas in the Military, 37 FED. B.J. 49 (1978); Charles W. Bethany Jr., The Guilty Plea Program 1 (1959) (unpublished LL.M. thesis, The Judge Advocate General’s School, U.S. Army Between 1952 and 1956, the guilty plea rate in Army general
courts-martial rose from less than one percent to sixty percent.23 This allowed staff judge advocates to substantially reduce general courtsmartial processing times,24 enabling them to process 11,168 general courts-martial in FY 1953, and then catch their breath as the number of such trials dropped to 7,750 in 1956.25 By 1958, this combination of increased guilty pleas and decreased general courts-martial reduced the workload of the Army Board of Military Review (ABMR) enough to eliminate three of its seven panels of appellate judges.

These numbers, however, do not tell the whole story because the birth of plea-bargaining occurred in the midst of the Korean War, and the dynamics of that conflict significantly impacted the development of the practice of law in the military.27 Additionally, the pioneering Army judge advocates, warrant officers, legal noncommissioned officers, and civilians of the 1950s profoundly 23 See MG Shaw Letter, supra note 2, at 3; Jasper L. Searles, Functioning of the Guilty Plea Program (1956), in REPORT OF PROCEEDINGS, ARMY JUDGE ADVOCATE In FY 2002, the Army experienced its worst post-trial processing times in thirty years; and in FY 2003 post-trial delay continued to be a problem in the Army. See THE JUDGE ADVOCATE GENERAL OF THE ARMY, ANN. REP., OCTOBER 1, 2002 TO SEPTEMBER 30, 2003, at 1-2, 6, & 11 (2003) [hereinafter TJAG REPORT (2003)] (on file with the OTJAG, U.S. Army, Criminal Law Division). To combat the continuing post-trial delay problem the Criminal Law “Division has aggressively monitored Army post-trial courts-martial processing and reevaluated the voice recognition program currently in use by Army court-reporters.” Id. at 1-2. The U.S. Army Trial Defense Service and Defense Appellate Division “have coordinated to monitor post-trial processing delays to ensure that their clients are receiving the very best representation throughout both the trial and appellate process, with smooth transition of counsel between our organizations.” Id. at 6. The Judge Advocate General’s Legal Center and School has continued instruction to military justice managers with a heavy emphasis on post-trial processing. The 42 students of the 9th Military Justice Managers Course received significant instruction on the practical “how to” of court-martial posttrial processing as well as substantive law instruction.


Their collective wisdom, along with astute guidance from the Army Judge Advocate General’s Corps (JAGC)
leadership, developed and institutionalized the basic tenants of military plea-bargaining that are used in courts-martial today.28 In fact, the lessons they learned in the 1950s form the basis of Rules for Courts Martial (RCM) 705, 910, and 1001; and Military Rule of Evidence