If you are accused or suspected of an offense under the UCMJ you might end up in pretrial restraint pending court-martial.
There are four types of pretrial restraint:
See R.C.M. 304.
Who may order the restraint of personnel?
Who may be restrained? No one may be ordered into any kind of restraint unless probable cause exists. Probable cause exists when there is a reasonable belief that:
In addition to the items above there is liberty risk status. Being flagged or put on legal hold is not a "restraint" for purposes of the UCMJ.
Pretrial confinement and restriction to base are the two most important ways the military uses to control those who are accused of offenses under the UCMJ and who are considered a flight risk or a risk to further offend.
The pretrial confinement process begins with the person being taken into custody. That can happen in several ways: law enforcement apprehends the person; or there has been an investigation and there is concern about the person's willingness to appear for any future proceedings, could interfere with witnesses or the investigation, or in some extreme cases is a suicide risk.
United States v. Heard, 3 M.J. 14 (C.M.A. 1977) was the early military case on this issue, although later cases in the Court of Appeals for the Armed Forces and the U.S. Supreme Court have further clarified all that is required. Once the person is put into pretrial confinement there are some due process rights that attach and a procedure that must be followed. The rules can be found in UCMJ, Articles 9 and 10, and Rules for Courts-Martial 304 (other than confinement) and 305 (pretrial confinement), as well as some implementing regulations. For example, paragraph 5-14, and chap. 9, AR 27-10 has information for Army cases on pretrial confinement. You can find useful general information for Air Force cases in their "Military Commander and the Law."
Unlike the civilian courts there is no bail system in the military.
Before any servicemember is confined or restricted, there must be a reasonable belief (similar to probable cause) that the servicemember committed an offense triable at court-martial and that confinement or restriction is necessary under the circumstances. Further, there must be a finding that lesser forms of restraint would be inadequate. See R.C.M. 305(d). Once confined the person must be told of their rights.
Each person confined shall be promptly informed of:
See R.C.M. 305(e).
The military justice system requires a review of the confinement decision within 48 hours. Within 72 hours, the military member is entitled to have his commanding officer review whether his continued confinement is appropriate. (However, if someone other than the commanding officer confined the member and the commanding officer review was actually conducted within 48 hours, then this commanding officer review can serve to satisfy both review requirements.) A military magistrate who is independent of the command must conduct another review within 7 days.
A military member may request the military judge assigned to the case review the appropriateness of the pretrial confinement. But in the military justice system there is no military judge until charges have been referred, an event that could be months away. So there are times when it may be appropriate to consider an extraordinary writ to the court of criminal appeals to seek release from unlawful pretrial confinement and/or punishment. There are also times when it may be appropriate or best for the client to remain in pretrial confinement (see below for confinement credit and other effects).
Throughout the confinement review process, a servicemember is provided a military lawyer, at no expense, to assist him, or her, or they can hire a civilian military lawyer at their cost.
Credit for pretrial restraint.
There is no longer automatic credit for pretrial restriction. In the old days it was possible to get a 2-1 credit against confinement adjudged for each day of restriction. No longer. There can be situations where there is at least day for day credit for unlawful pretrial restriction and for restriction tantamount to confinement. This is known as 'Mason credit.' See United States v. Mason, 19 M.J. 274 (C.M.A. 1985).
Whether restriction was tantamount to confinement depends on the totality of the circumstances. United States v. King, 58 M.J. 110 (C.A.A.F. 2003).
Factors include: the nature of the restraint (physical or moral); the area or scope of the restraint (confined to post, barracks, room, etc.); the types of duties, if any, performed during the restraint (routine military duties, fatigue duties, etc.); the degree of privacy enjoyed within the area of restraint; whether the accused was required to sign in periodically with some supervising authority; whether a charge of quarters or other authority periodically checked to ensure the accused's presence; whether the accused was required to be under armed or unarmed escort; whether and to what degree the accused was allowed visitation and telephone privileges; what religious, medical, recreational, educational, or other support facilities were available for the accused's use; the location of the accused's sleeping accommodations; and whether the accused was allowed to retain and use his personal property (including his civilian clothing)).
Credit for pretrial confinement occurs in several ways.
Confinement in violation of service regulations does not create a per se right to sentencing credit under the Uniform Code of Military Justice (UCMJ). Adcock, 65 M.J. at 23 (citing United States v. King, 61 M.J. 225, 228 (C.A.A.F. 2005)). However, under Rule for Courts-Martial (R.C.M.) 305(k), a servicemember may identify abuses of discretion by pretrial confinement authorities, including violations of applicable service regulations, and on that basis request confinement credit.
United States v. Williams, 68 M.J. 252, 253 (C.A.A.F. 2010). In this case the court found the military judge abused his discretion and should have given additional credit.
Staying in pretrial confinement.
There are of course disadvantages to pretrial confinement in addition to the loss of liberty. You will find it harder to maintain communications with your military lawyer, it may be harder to help your military lawyer represent you. However, there may be an occasional advantage or reason to stay in pretrial confinement.
When a servicemember is placed in pretrial confinement, "immediate steps shall be taken" to inform the accused of the charges and to either bring the accused to trial or dismiss the charges. Article 10, UCMJ. "We have consistently noted that Article 10 creates a more exacting speedy trial demand than does the Sixth Amendment [and R.C.M. 707]."
United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010).
Waiver. If you believe you have been unlawfully restrained or unlawfully punished by pretrial restraint do not remain silent.
Check the page for Unlawful Pretrial Punishment in violation of UCMJ Article 13.