§949m — Title 10 Armed Forces | U.S. Code

Summary

Military commissions can only find someone guilty if a special rule in section 949i(b) applies or if at least two-thirds of the primary members who are present when the vote is held agree. Most punishments also need a two-thirds vote of the primary members who are present. The death penalty has extra rules. Death is allowed only if the law permits it for the crime, the prosecution asked for death in advance, the accused was convicted by every primary member present (or pleaded guilty and did not withdraw the plea before sentence was announced under section 949i(b)), and every primary member present agrees to death. Life imprisonment or confinement over 10 years needs three-fourths of the primary members present. The members who vote on sentence do not have to be the same as those who voted on guilt if section 948m(d) is met. In cases seeking death, there must be at least 12 primary members unless 12 are not reasonably available because of physical conditions or military needs; then the official who sets up the commission may pick as few as 9 and must add a written explanation to the record saying why more could not be used.

Title 10, §949m

Armed Forces — Source: USLM XML via OLRC

(a)No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the primary members present at the time the vote is taken.

(b)(1)Except as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of two-thirds of the primary members present at the time the vote is taken.

(2)No person may be sentenced to death by a military commission, except insofar as—

(A)the penalty of death has been expressly authorized under this chapter, chapter 47 of this title, or the law of war for an offense of which the accused has been found guilty;

(B)trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;

(C)the accused was convicted of the offense by the concurrence of all the primary members present at the time the vote is taken, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title; and

(D)all primary members present at the time the vote was taken on the sentence concurred in the sentence of death.

(3)No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the primary members present at the time the vote is taken.

(4)The primary members present for a vote on a sentence need not be the same primary members who voted on the conviction if the requirements of section 948m(d) of this title are met.

(c)(1)Except as provided in paragraph (2), in a case in which the penalty of death is sought, the number of primary members of the military commission under this chapter shall be not less than 12 primary members.

(2)In any case described in paragraph (1) in which 12 primary members are not reasonably available for a military commission because of physical conditions or military exigencies, the convening authority shall specify a lesser number of primary members for the military commission (but not fewer than 9 primary members), and the military commission may be assembled, and the trial held, with not less than the number of primary members so specified. In any such case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of primary members were not reasonably available.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 949m, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2616, related to number of votes required for conviction and sentences and number of members required on military commission for penalty of death, prior to the general amendment of this chapter by Pub. L. 111–84.

Amendments

2013—Pub. L. 113–66, § 1031(c)(1), inserted “primary” before “members” wherever appearing. Subsec. (b)(4). Pub. L. 113–66, § 1031(c)(2), added par. (4). 2011—Subsec. (b)(2)(C). Pub. L. 112–81, § 1030(a)(1), inserted before semicolon “, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title”. Subsec. (b)(2)(D). Pub. L. 112–81, § 1030(a)(2), inserted “on the sentence” after “vote was taken”.

§949m Number of Votes Required