2008 edition - Fort Sam Houston - U.S. Army

App. 21, R.C.M. 1004(d) APPENDIX 21
nation is required. See Article 52(a)(1). The rule provides for
sentencing proceedings to take place, so that reviewing authorities
will have the benefit of any additional relevant information.
The Supreme Court has held a mandatory death penalty to be
unconstitutional for murder. Woodson v. North Carolina, supra;
Roberts (Stanislaus) v. Louisiana, supra. It has not held that a
mandatory death penalty is unconstitutional for any offense. See
Roberts (Harry) v. Louisiana, supra at 637 n. 5.
In holding a mandatory death sentence for murder to be unconstitutional,
the plurality in Woodson emphasized that the prevailing
view before Furman v. Georgia, supra, was decidedly against
mandatory death for murder. Contrarily, death has consistently
been the sole penalty for spying in wartime since 1806. See W.
Winthrop, Military Law and Precedents 765–66 (2d ed. 1920
reprint). Before 1920 the statue making spying in time of war
triable by court-martial and punishable by death was not part of
the Articles of War. Id. See A.W. 82 (Act of 4 June 1920, Ch.
227, 41 Stat. 804).
(e) Other penalties. The second sentence of this subsection is
based on the second sentence of the third paragraph of paragraph
126 a of MCM, 1969 (Rev.), which was in turn based on JAGA
1946/10582; SPJGA 1945/9511; United States v. Brewster, CM
238138, 24 B.R. 173 (1943). As to the third sentence of this
subsection,see also United States v. Bigger, 2 U.S.C.M.A. 297, 8
C.M.R. 97 (1953); W. Winthrop, supra at 428, 434.
2002 Amendment: This change resulted from the enactment of
Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Pub. L. No. 105-85, 111
Stat. 1629, 1759 (1997).
Rule 1005 Instructions on sentence
Introduction. Except as noted below, this rule and the discussion
are taken from paragraph 76 b(1) of MCM, 1969 (Rev.).
(a) In general. Regarding the discussion see generally United
States v. Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176,
180-81 (1959). See also United States v. Lania, 9 M.J. 100
( C . M . A . 1 9 8 0 ) ( u s e o f g e n e r a l d e t e r r e n c e ) ; U n i t e d S t a t e s v .
Smalls, 6 M.J. 346 (C.M.A. 1979); United States v. Slaton, 6 M.J.
254 (C.M.A. 1979) (mental impairment as matter in mitigation);
United States v. Keith, 22 U.S.C.M.A. 59, 46 C.M.R. 59 (1972)
(recommendation for clemency); United States v. Condon, 42
C . M . R . 4 2 1 ( A . C . M . R . 1 9 7 0 ) ( e f f e c t o f a c c u s e d ’ s a b s e n c e ) ;
United States v. Larochelle, 41 C.M.R. 915 A.F.C.M.R. 1969)
(Vietnam service).
(b) When given. See Fed. R. Crim. P. 30 and paragraph 74 e of
MCM, 1969 (Rev.).
(c) Requests for instructions. See Fed. R. Crim. P. 30 andUnited
States v. Neal, 17 U.S.C.M.A. 363, 38 C.M.R. 161 (1968). The
discussion is based on Fed. R. Crim. P. 30 and paragraph 73 d of
MCM, 1969 (Rev.).
(d) How given. See Analysis, R.C.M. 921(d).
(e) Required instructions. The reference in the fourth sentence of
the discussion of subsection (1) to rehearing or new or other trial
is based on paragraph 81 d(1) of MCM, 1969 (Rev.). The second
sentence of the first paragraph and the second paragraph of the
discussion to (1) are based on United States v. Henderson, 11
M.J. 395 (C.M.A. 1981). The last clause of subsection (3) is
based on United States v. Givens, 11 M.J. 694, 696 (N.M.C.M.R.
A21-78
1981). The discussion under subsection (4) is based on the third
s e n t e n c e o f p a r a g r a p h 7 6 b ( 1 ) o f M C M , 1 9 6 9 ( R e v . ) a n d
onUnited States v. Davidson, 14 M.J. 81 (C.M.A. 1982).
1998 Amendment: The requirement to instruct members on the
effect a sentence including a punitive discharge and confinement,
or confinement exceeding six months, may have on adjudged
forfeitures was made necessary by the creation of Article 58b,
UCMJ, in section 1122, National Defense Authorization Act for
F i s c a l Y e a r 1 9 9 6 , P u b . L . N o . 1 0 4 - 1 0 6 , 1 1 0 S t a t . 1 8 6 , 4 6 3
(1996).
(f) Waived. This subsection is based on Fed. R. Crim. P. 30.
Rule 1006 Deliberations and voting on sentence
Introduction. Except as noted below, this rule and the discussion
are based on Articles 51 and 52 and on paragraphs 76 b(2)
and (3) of MCM, 1969 (Rev.).
(a) In general. The first sentence is based on the first sentence of
paragraph 76 b(1) of MCM, 1969 (Rev.).
(b) Deliberations. See Analysis, R.C.M. 921(b) concerning the
second, third, and fourth sentences of this subsection. See also
United States v. Lampani, 14 M.J. 22 (C.M.A. 1982).
(c) Proposal of sentences. The second clause of the second sentence
of this subsection is new and recognizes the unitary sentence
concept. See United States v. Gutierrez, 11 M.J. 122, 123
(C.M.A.1981). See generally Jackson v. Taylor, 353 U.S. 569
(1957).
2002 Amendment: This change to the discussion resulted from
the enactment of Article 56a, UCMJ, in section 581 of the National
Defense Authorization Act for Fiscal Year 1998, Pub. L.
No. 105-85, 111 Stat. 1629, 1759 (1997).
(d) Voting. As to subsection (3)(A) see United States v. Hendon,
6 M.J. 171, 172–73 (C.M.A. 1979); United States v. Cates, 39
C.M.R. 474 (A.B.R. 1968).
2002 Amendment: Subsection (d)(4)(B) was amended as a result
of the enactment of Article 56a, UCMJ, in section 581 of the
National Defense Authorization Act for Fiscal Year 1998, Pub. L.
No. 105-85, 111 Stat. 1629, 1759 (1997).
As to subsection (d)(5), the second sentence of the third paragraph
of paragraph 76 b(2) of MCM, 1969 (Rev.) has been
limited to Article 118 offenses because, unlike Article 106, findings
on an Article 118 offense do not automatically determine the
s e n t e n c e a n d d o n o t r e q u i r e a u n a n i m o u s v o t e . S e e A r t i c l e s
52(a)(1) and (2). Thus a separate vote on sentence for an Article
105 offense is unnecessary.
A s t o s u b s e c t i o n ( d ) ( 6 ) s e e U n i t e d S t a t e s v . J o n e s , 1 4
U.S.C.M.A. 177, 33 C.M.R. 389 (1963). The reference to no
punishment was added to recognize this added alternative.
(e) Action after sentence is reached. See United States v. Justice,
3 M.J. 451, 453 (C.M.A. 1977). The second paragraph of the
discussion is based on the second sentence of paragraph 76 c.
Rule 1007 Announcement of sentence
Introduction. Except as noted below, this rule and the discussion
are based on paragraph 76 c of MCM, 1969 (Rev.).
(a) In general. The discussion is based on United States v. Henderson
, 11 M.J. 395 (C.M.A. 1981); United States v. Crawford,
12 U.S.C.M.A. 203, 30 C.M.R. 203 (1961).
The requirement that the sentence announcement include a ref-