Pretrial Confinement in the Military

Pretrial confinement in the military is exactly what it sounds like; a Servicemember is put in confinement (jail) while they are pending a Court-Martial. It can be devastating for the Servicemember in question. Most installations do not have jails; therefore, Servicemembers often stay at the local jails in the town near the base. Some of these facilities are not well taken care of and can be very challenging environments. Furthermore, being in pretrial confinement makes it harder for a Servicemember to prepare for trial. Pretrial confinement in the military also cuts off accused Servicemembers from their support group. JAG prosecutors know this and will often use pretrial confinement to pressure an accused Servicemember into pleading guilty when they otherwise would not have.

For the overwhelming majority of Courts-Martial, the Servicemember accused will NOT be in pretrial confinement. However, the military does have a mechanism to put a Servicemember in confinement before a Court-Martial.

For pretrial confinement to even be on the table there must be a pending Court-Martial. I have heard Commanders/First Sergeants threaten pretrial confinement with no pending Court-Martial. That is improper and not allowed. Charges must have already been preferred or about to be preferred. If this is not the case, a Servicemember should be immediately released.

If there are charges preferred or about to be preferred, a Servicemember can be ordered into pretrial confinement. This can be done by a commanding officer of the Servicemember in question or any commissioned officer (for enlisted personnel only). In order for a Servicemember to be put into pretrial confinement, the following conditions must be found by the ordering officer:

1) There is probable cause to believe that an offense under the UCMJ has been committed;
2) There is probable cause to believe that the Servicemember in confinement committed said offense;
3) It is reasonably foreseeable that, without pre-trial confinement, the Servicemember will either not appear at trial/pre-trial hearings OR that the Servicemember will engage in serious criminal misconduct; and,
4) Lesser forms of restraint are inadequate (i.e. restrictions on liberty)

Usually, the officer ordering confinement will write a memorandum detailing the above findings. Within 48 hours a “neutral and detached officer” is required conduct a review of the Servicemember’s confinement. Generally, the Command selects a staff officer in the same unit to conduct this review. It is primarily a “check the box” review and I have never seen it result in the Servicemember being released from confinement. Within 72 hours, the Commanding officer conducts another review. Again, this is usually a “check the box” review and I have never seen it result in relief for the Servicemember.

The first meaningful review comes at the 7-day mark. A JAG conducts this review. While this JAG is not a prosecutor, he/she usually works very closely with the prosecutors. The Servicemember in question will be present at this review with his/her attorney. A prosecutor will be present as well. If the Servicemember is represented by an effective attorney, it is common for him/her to be released at this hearing. If a Servicemember is released, they report back to their unit while pending trial; however, if he/she commits subsequent qualifying misconduct, he/she can be ordered back into confinement.

If a Servicemember is not released at the 7-day review, he/she will likely be in confinement until trial. However, once the charges are referred to the Court, the military judge can conduct a review of the confinement and order release if warranted.

All time served in pretrial confinement will be credited towards whatever sentence a Servicemember gets at trial (if any). For example, if a Servicemember serves 100 days in confinement before trial and is only ultimately sentenced to 90 days in jail, they will go back to their unit immediately after the trial is over. Additionally, if the jail has especially terrible conditions, a Servicemember can be awarded more than day for day credit.

If a Servicemember has been ordered into pretrial confinement, representation by an experienced military lawyer becomes even more important. Effective advocacy to get a Servicemember out of pretrial confinement can make or break a case.

This article was written by Attorney Matthew Barry

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