Both military and civilian courts have rules that govern the acceptance of a guilty plea. Based generally on the civilian rule, Rule for Courts-Martial (R.C.M.) 910 substantially restricts the military judge in the methods whereby he can accept a guilty plea in contrast to the broader discretion given his federal counterpart under Federal Rule of Criminal Procedure 11 (“Rule 11”). Under traditional statutory and regulatory interpretation, Rule 11 may inform the interpretation of R.C.M. 910, but it does not control. Unless R.C.M. 910 conflicts with the Uniform Code of Military Justice (UCMJ) or the Constitution, it is granted the force and effect of law. But as I was reviewing decisions of the Court’s 1968-1969 term my ongoing research project, I had the opportunity to re-read United States v. Care, the seminal case establishing the standard for determining the factual basis for a guilty plea in military courts-martial. In doing so, I was reminded of the contribution legal history can make to the understanding and development of military law.
Article 45, UCMJ, establishes that only provident pleas of guilty may be accepted by a military judge. This is implemented by R.C.M. 910. To be provident, a guilty plea must be voluntary and accurate, meaning there must be a factual basis for the plea. In military courts-martial, this is a highly scripted colloquy. This script is found in Appendix 8 of the Manual for Courts-Martial (MCM), published by the Department of Defense’s Joint Service Committee on Military Justice, and widely viewed as the “bible” for military legal practice. Amongst other things, the military judge reviews each element of the charged offense with the Accused and subsequently asks if each describes what the Accused actually did. Then the military judge engages in an exchange with the Accused to determine the factual basis for the plea, as directed in the trial script:
The military judge should elicit from the accused facts supporting the guilty plea by questioning the accused about the offense(s). The questioning should develop the accused’s description of the offense(s) and establish the existence of each element of the offense(s). The military judge should be alert to discrepancies in the accused’s description or between the accused’s description and any stipulation. If the accused’s discussion or other information discloses a possible defense, the military judge must inquire into the matter, and may not accept the plea if a possible defense exists. The military judge should explain to the accused the elements of an offense when the accused’s description raises the possibility of one. The foregoing inquiry should be repeated as to each offense to which the accused has pleaded guilty.
The military judge’s federal counterpart has broader discretion. Upon the defendant’s counsel announcing that the defendant has changed his plea to guilty, the district judge reviews a checklist of items with the defendant. He then usually turns to the Government for a proffer of what it would prove if the defendant pleaded not guilty. In turn, the federal prosecutor proffers a short set of facts that hits every element of the offense.
The factual basis inquiry is called the Care inquiry by military practitioners, named for the Court of Appeals for the Armed Forces’ (CAAF) decision in United States v. Care, the seminal case on the providency of guilty pleas in military courts. But most practitioners, often the leading critics of the formal process, have likely never read the actual decision. There is rarely the need to for the average practitioner. The rule is so ingrained that controversy rarely arises.
Scholars or other intellectually curious readers would discover that the traditional approach of deferring to the executive in the promulgation of rules more strict than its federal counterpart may not stand on as secure footing when considering the legal history of the factual basis inquiry in military law. Then-MAJ Terry Elling studied the history and evolution of both Rule 11 and R.C.M. 910 in his 1991 study, Guilty Plea Inquiries: Do We Care Too Much?, 134 Mil. L. Rev. 195 (1991). It is a bit dated, and the development of the law could benefit by renewed attention. That attention can benefit from a historical look at Care.
Private (PVT) Care pleaded guilty to one specification of desertion, in accordance with a pretrial agreement. Before accepting his plea of guilty, the law officer (the precursor to the modern day military judge) explained that he must first determine whether PVT Care’s plea was both voluntary and provident. To that end, he asked if the Accused (1) knew pleading guilty would result in a guilty verdict without any further proof, (2) he could be sentenced to the maximum punishment allowable, (3) the meaning and effect of his plea, (4) the Government retained the burden to prove his guilty beyond a reasonable doubt, (5) he was entitled to plead not guilty, (6) the elements of the offense, (7) had adequate opportunity to consult with counsel on any matters he felt necessary, (8) was satisfied with his counsel, (9) was advised by his counsel of the maximum punishment, (10) was the initiator of the plea negotiations, (11) was pleading guilty voluntarily, (12) was not coerced, (13) believed pleading guilty was in his best interest, (14) was pleading guilty based on free will and a desire to confess his guilty, and (15) knew he could withdraw his plea. The Accused affirmatively responded to each question.
On appeal to the military’s highest court, PVT Care argued that his defense counsel did not “specifically explain the elements of the offense to him,” that PVT Care had not intended to remain away permanently (the distinction between absence without leave and desertion), and that his counsel told him a not guilty plea would delay his trial for four months, he’d be convicted anyway, and would receive the maximum punishment allowable. Were he tried again, PVT Care argued, he would have pleaded not guilty. His trial defense counsel denied each allegation.
The Court noted that it thoroughly examined the background of Article 45 three years earlier in United States v. Chancellor and concluded that Congress intended a guilty plea to be “accompanied by certain safeguards to insure the providence of the plea.” Since the Court further determined that no such inquiry existed in military practice, it “strongly recommended” the armed forces adopt one. Between Chancellor and Care, and a number of earlier decisions recognizing the need for an inquiry, the armed forces failed to do so.
Synthesizing three Supreme Court decisions interpreting Federal Rule of Criminal Procedure 11 (concerning guilty pleas) and reviewing a state court judge’s acceptance of such a plea, the Court held that:
[A] plea of guilty may meet required standards if on the basis of the whole record the showing is clear that the plea was truly voluntary, even if the trial judge has not personally addressed the accused and determined that the defense possesses an understanding of the law in relations to the facts.
Though the law officer, as exhaustive as he was, did not personally inform the Accused of all of the elements individually, nor did he establish the factual components of the guilty plea, the Court concluded that the whole record clearly demonstrated a voluntary plea and thus upheld the lower court’s affirmance of the conviction.
But the Court went further and stepped into its supervisory (some might say improperly advisory and legislative) role. It stated its belief that “further action is required toward the objective of having court-martial records reflect fully an awareness by an accused pleading guilty of what he is admitting that he did and intended and of the law that applies to his acts and intentions.” The armed forces had ignored or declined to adopt the Court’s prior recommendations in Chancellor. Enough was enough.
[T]he record of trial for those courts-martial convened more than thirty days after the date of this opinion must reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge or the president has questioned the accused about what he did or did not do, and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge or president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.
This requirement, the Court continued, did not reflect upon the competence of defense counsel. Counsel must explain the elements of the offense and determine that there is a factual basis for the plea. But that will not relieve the military trial judge or president of the panel of his responsibility to do the same on the record.
In this case, history teaches us that the factual basis inquiry is a judicial rule adopted by the executive, rather than an executive rule subject to the same level of deference. An updated study on this long established, but perhaps outdated, practice that combines legal history with legal analysis would certainly benefit the ongoing development of military law.
 There are no Alford pleas in the military justice system. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).