Permissible and Prohibited Plea Agreement Terms
Key takeaways
- The baseline rule: either side may propose any term not prohibited by law or public policy — and every term must be voluntary.
- Waivers of the Article 32 hearing, panel rights, an administrative separation board, Article 13 credit, and accusatory-stage UCI are all permissible bargaining chips.
- No agreement may strip the right to counsel, due process, a jurisdiction challenge, speedy trial, a complete sentencing proceeding, or full post-trial and appellate rights.
- A deal “cannot transform the trial into an empty ritual” — terms that gut the defense sentencing case are void. United States v. Davis, 50 M.J. 426 (C.A.A.F. 1999).
- An unlawful term is normally severed and declared void while the rest of the agreement stands — the fate of the remainder can turn on a severance clause.
The R.C.M. 705(c) framework
The rule’s architecture is permissive with a hard floor. Either the defense or the government may propose any term or condition not prohibited by law or public policy — the reported cases run from restitution schedules to treatment-program enrollment. But R.C.M. 705(c) draws non-negotiable boundaries: every term must be voluntary, and certain rights cannot be bargained away at any price.
The military judge enforces those boundaries at trial, with a duty to police terms for legality and fundamental fairness, and Article 53a(b) commands rejection of an agreement containing a term not accepted by both parties, a term the accused does not understand, a sentence below a mandatory minimum outside narrow exceptions, a term prohibited by law, or a term inconsistent with a regulation. How the inquiry works — and what happens when the parties never truly agreed — is covered in the plea agreements guide and in withdrawing from or breaching a plea agreement.
Charge and sentence terms
The core of most deals is charging and sentencing relief: referral to a less serious forum, non-capital referral of a capital offense, withdrawal of specifications, a promise to present no evidence on parts of the charge sheet, and limits on the sentence the court may adjudge — including, where applicable, whether confinement for multiple specifications runs concurrently or consecutively. R.C.M. 705(c)(2)(F). Around that core, the cases have approved a range of sentence-adjacent terms:
- Fines. A bargained-for fine, freely assented to, is a recognized “good reason” for imposing one — though in United States v. Smith, 44 M.J. 720 (A. Ct. Crim. App. 1996), a contingent-confinement enforcement provision fell for circumventing the Secretary’s parole authority.
- Forfeiture of property used in the crime. Requiring an accused convicted of receiving child pornography to forfeit the laptop used in the offense was consistent with the federal forfeiture statute, not an unauthorized punishment. United States v. Henthorn, 58 M.J. 556 (N-M. Ct. Crim. App. 2003).
- Restitution. The accused may promise restitution — and one who later fails to pay a defense-proposed term in full is not automatically excused by indigency. United States v. Mitchell, 46 M.J. 840 (N-M. Ct. Crim. App. 1997).
- Probation-style conditions. The accused may agree to conform conduct to conditions during a suspension period, generally proportioned to the sentence: a 31-year suspension tied to a 30-year cap on a life sentence survived (United States v. Wallace, 58 M.J. 759 (N-M. Ct. Crim. App. 2003)); an indeterminate suspension of up to 15 years did not (United States v. Spriggs, 40 M.J. 158 (C.M.A. 1994)). Post-confinement enrollment in sex offender treatment is not per se impermissible. United States v. Cockrell, 60 M.J. 501 (C.G. Ct. Crim. App. 2004).
Waivers the law allows
Most negotiation friction is over waivers — procedural rights the accused trades for sentence protection. The following are established as permissible:
- The Article 32 preliminary hearing. R.C.M. 705(c)(2)(E) expressly authorizes waiving the Article 32 preliminary hearing, along with the right to trial by members, the right to request judge-alone trial, and the personal appearance of sentencing witnesses.
- Forum selection. The government may condition its deal on judge-alone trial and price the cap differently by forum. United States v. Burnell, 40 M.J. 175 (C.M.A. 1994). The check is coercion: standardized command policies are closely scrutinized, and the waiver must be a “freely conceived defense product.” United States v. Zelenski, 24 M.J. 1 (C.M.A. 1987).
- Stipulations of fact — including aggravation. The government can insist on a stipulation admitting aggravation evidence, and on the truth and admissibility of its contents, or walk away. United States v. Harrod, 20 M.J. 777 (A.C.M.R. 1985). Even stipulated uncharged misconduct survived where the accused, offered the chance to withdraw, kept the deal. United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990).
- A promise to testify. The accused may agree to testify or assist investigators in another case — though requiring testimony without a grant of immunity is likely impermissible; the cases upholding such terms turned on the accused never being called. United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997).
- Article 13 credit. An accused may waive claims of illegal pretrial punishment under Article 13 — but the judge must inquire into the confinement circumstances, the waiver’s voluntariness, and the accused’s understanding of the surrendered remedy. United States v. McFadyen, 51 M.J. 289 (C.A.A.F. 1999).
- Unreasonable multiplication of charges. Waiving an unreasonable multiplication of charges motion did not violate public policy on the facts presented. United States v. Mitchell, 62 M.J. 673 (N-M. Ct. Crim. App. 2006).
- Accusatory-stage UCI. A defense-originated waiver of accusatory unlawful command influence, on an issue not affecting the fairness of the adjudicative process, was upheld. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).
- An administrative separation board. A term waiving a separation board if no punitive discharge is adjudged does not violate public policy. United States v. Gansemer, 38 M.J. 340 (C.M.A. 1993).
- Comparative sentencing information. Waiving sentence-comparison material in an unsworn statement — and even agreeing not to discuss an alleged constitutional violation during interrogation — have been upheld as knowing, voluntary waivers. United States v. Edwards, 58 M.J. 49 (C.A.A.F. 2003).
A recurring footnote: many of these decisions predate the current waiver and forfeiture rules in R.C.M. 905(e), and their reasoning may be affected by them. The categories remain the map; current-rule analysis belongs in every motion.
Terms that cannot be bargained away
R.C.M. 705(c) voids two kinds of terms outright: terms that are not voluntary, and terms depriving the accused of certain bedrock protections — the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; and the complete and effective exercise of post-trial and appellate rights. The cases give each category teeth:
- Speedy trial. A term waiving speedy trial is unenforceable, full stop: in United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999), CAAF held the judge should have voided the term, upheld the rest of the deal, and asked the accused whether he wished to litigate the issue. Where the facts raised a colorable claim — 117 days of pretrial confinement — enforcing the waiver was not harmless, and findings and sentence were set aside. United States v. Benitez, 49 M.J. 539 (N.M. Ct. Crim. App. 1998).
- Clemency and parole. A term declining clemency or parole for twenty years impermissibly impeded the service secretaries’ clemency and parole powers; CAAF struck the term while preserving the rest of the deal. United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007). The rights at stake are covered in submitting clemency matters.
- Individual military counsel. Raising the confinement cap by a month in exchange for the delay needed to obtain individual military counsel implicated the right to IMC and violated public policy. United States v. Copley (A. Ct. Crim. App. 2004) (unpub.).
- Jurisdiction and immunity claims. An agreement raising the quantum if the accused pressed a de facto immunity claim taxed the due process right to challenge jurisdiction — non-frivolous claims of that kind are not proper subjects for bargaining. United States v. Conklan, 41 M.J. 800 (A. Ct. Crim. App. 1995).
- Fundamentally unfair structures. A deal suspending a bad-conduct discharge only if confinement exceeded four months — rewarding a harsher sentence — was contrary to public policy (United States v. Cassity, 36 M.J. 759 (N.M.C.M.R. 1992)), as was waiving the military judge’s disqualification after his impartiality was reasonably questioned (United States v. Keyes, 33 M.J. 567 (N.M.C.M.R. 1991)).
The empty-ritual line: complete sentencing proceedings
The most litigated prohibition under the current system is the right to a complete sentencing proceeding, because direct sentence limitations naturally tend to shrink the sentencing case. The governing principle is older than the MJA:
“A fundamental principle underlying this Court’s jurisprudence on pretrial agreements is that the agreement cannot transform the trial into an empty ritual.”United States v. Davis, 50 M.J. 426 (C.A.A.F. 1999), citing United States v. Allen, 8 U.S.C.M.A. 504 (1957)
Applications are concrete. A term requiring the accused to request a bad-conduct discharge at trial was struck because it negated the defense sentencing case and forced a choice between the deal and a complete proceeding — prejudicial even though the accused never made the request. United States v. Libecap, 57 M.J. 611 (C.G. Ct. Crim. App. 2002); the stakes are explained in bad-conduct and dishonorable discharges. Likewise, a term barring the accused from presenting any out-of-Hawaii witness by any method — in person, telephone, letter, or affidavit — went too far; waiving personal appearance of sentencing witnesses is permissible only while alternative channels like telephonic testimony or stipulations remain open. United States v. Sunzeri, 59 M.J. 758 (N-M. Ct. Crim. App. 2004).
What this means if you’re negotiating terms
The government’s opening draft is a wish list, not a statute. Some waivers are lawful currency worth trading; others are void the moment they are written and cost you nothing to refuse; a few are traps that can sink the whole agreement at trial. Never treat the packet as take-it-or-leave-it — knowing which category each term falls into is exactly the leverage a defense lawyer who litigates these agreements brings to the table.
Permitted vs. prohibited at a glance
| Term | Status | Key authority |
|---|---|---|
| Waive Article 32 preliminary hearing | Permitted | R.C.M. 705(c)(2)(E) |
| Judge-alone forum / waive members | Permitted (if freely conceived, not coerced) | Burnell; Zelenski |
| Stipulate to facts, incl. aggravation | Permitted | Harrod; Sharper |
| Waive administrative separation board | Permitted | Gansemer |
| Waive Article 13 credit | Permitted, with special judicial inquiry | McFadyen |
| Waive accusatory-stage UCI (defense-originated) | Permitted | Weasler |
| Restitution; fines; forfeit property used in crime | Permitted | Mitchell; Smith; Henthorn |
| Concurrent/consecutive confinement term | Permitted | R.C.M. 705(c)(2)(F) |
| Waive speedy trial | Prohibited | McLaughlin; Benitez |
| Limit clemency or parole rights | Prohibited | Tate |
| Require accused to request a punitive discharge | Prohibited | Libecap |
| Bar sentencing witnesses by every method | Prohibited | Sunzeri |
| Tax jurisdiction/immunity claims with a higher cap | Prohibited | Conklan |
| Waive counsel, due process, or jurisdiction challenges | Prohibited | R.C.M. 705(c) |
The gray zone: waive-all-motions and confessional stipulations
“Waive all waivable motions.” This boilerplate term is legally permissible and can extinguish even motions nobody mentioned at trial: in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009), the accused’s multiplicity and unreasonable-multiplication claims were waived by the provision although defense counsel never listed them, because the underlying facts were known at the time of the plea. But its edges are ragged — a term waiving “all pretrial motions” was too broad because it purported to reach motions that cannot be bargained away (Rivera) — and careful judges now ask the defense to name what is being waived. Which motions die silently if not raised is mapped in which motions are waived if not raised.
Confessional stipulations. A stipulation admitting essentially every element is the functional equivalent of a guilty plea and demands its own inquiry under United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977). The prohibited combination — struck down in Davis — is a confessional stipulation paired with a promise to raise no defense while pleading not guilty. A stipulation that leaves elements genuinely contestable, and which the defense actually contests, is not confessional at all. United States v. Dixon, 45 M.J. 104 (C.A.A.F. 1996). How stipulations interact with the guilty-plea colloquy is part of the providence inquiry.
Practitioner’s note
When a proposed agreement lands on our desk, we mark it up in three colors: terms that are lawful and worth their price, terms void on their face that come out without costing our client anything, and gray-zone terms that need narrowing — a waive-all-motions clause cut down to named motions, a witness waiver rewritten to preserve telephonic testimony. We also insist on a severance clause, because when a term fails, that clause often decides whether the client keeps the bargain or loses the whole deal. The government rarely fights hard over language it assumed nobody would read.
Frequently asked questions
Can a plea deal require me to waive my Article 32 hearing?
Yes. R.C.M. 705(c)(2)(E) expressly permits waiving the Article 32 preliminary hearing as a bargaining term, along with rights like trial by members and personal appearance of sentencing witnesses. It is one of the most common government asks. Whether the hearing is worth more to your defense than what the government offers for it is a case-by-case judgment.
Can the government make me waive my speedy trial rights in a plea agreement?
No. R.C.M. 705 prohibits bargaining away the right to a speedy trial, and CAAF has held such a term unenforceable — the judge should declare it void, keep the rest of the agreement, and ask whether you want to litigate the issue. Where the facts raise a real speedy trial claim, enforcing the waiver has led to findings being set aside.
What is a waive-all-waivable-motions provision?
A boilerplate term in which the accused gives up every motion that can lawfully be waived. CAAF enforces it — even against motions counsel never named at trial — so long as the underlying facts were known at the plea. It never reaches non-waivable rights like speedy trial, but its breadth is exactly why the defense should narrow it to specific, named motions before signing.
What happens if one term in my plea agreement turns out to be illegal?
The usual remedy is that the term is declared void and unenforceable while the remainder of the agreement stands — CAAF took that approach with both a speedy trial waiver and a clemency-and-parole waiver. Whether the rest survives can depend on the agreement's severance clause, which is a good reason to make sure your deal contains one.
Can a plea agreement require me to testify against someone else?
You may agree to testify or assist investigators in another case, and such terms have been upheld. But a term requiring testimony without a grant of immunity is on thin ice — the decisions sustaining those clauses relied on the accused never actually being called to testify — so any cooperation term should be negotiated with the immunity question answered in writing.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has spent more than 25 years reading proposed plea agreement terms for the traps — the waiver clause worth trading, the void term inserted from a template, the misconduct provision that can swallow a deal after sentencing. A former Army prosecutor and defense counsel and a nationally recognized trial advocacy author and instructor, he has negotiated agreement terms in courts-martial worldwide, including Article 120, war crimes, and violent offense cases where a single clause changed the client’s exposure by years.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has negotiated and litigated plea agreement terms for more than 20 years across sexual assault, domestic violence, murder, and white-collar courts-martial — and in the administrative separation boards that waiver terms so often implicate. Bilingual in English and Spanish, she has represented service members worldwide and legally reviewed this page against R.C.M. 705(c), Article 53a, and the CAAF decisions it discusses.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.