10 U.S.C. § 949m: Number of votes required

Summary

A military commission may only find someone guilty when at least two-thirds of the primary members who are there agree, unless a different rule in section 949i(b) applies. The same two-thirds rule usually decides sentences. To give life in prison or any sentence over 10 years, at least three-fourths of the primary members present must agree. The members who decide the sentence do not have to be the same people who voted on guilt if the rule in section 948m(d) is followed. The death penalty can be used only if the offense allows it, the prosecutor asked for death before the trial, the accused was convicted by a unanimous vote of all primary members present (or entered a guilty plea that wasn’t withdrawn under section 949i(b)), and every primary member present agrees to death. If death is sought, the commission must have at least 12 primary members, but in rare cases a convening authority may set a lower number not below 9 and must write down why 12 were not available.

Title 10, §949m

Armed Forces, Source: USLM XML via OLRC

(a)Conviction.—

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)Sentences.—

(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the concurrence of all the primary members present at the time the vote is taken, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title; and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)Number of Members Required for Penalty of Death.—

(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