UCMJ and Pretrial Confinement

Pretrial Confinement Is A Loss of Liberty Before Trial

Being placed in pretrial confinement, is more than a restriction on your freedom. While confined it will be harder for you and your military defense lawyers to work and prepare your court-martial case, it will affect family relationships, and it can affect your pay.

What is Pretrial Confinement?

Pretrial confinement, in contrast to arrest, is the physical restraint of a service member awaiting trial or a hearing. This typically involves being placed in a brig, a military detention facility, or a secured area under guard. It is a significant deprivation of liberty, similar to jailing a civilian suspect.

Justification for Pretrial Confinement

The UCMJ and its implementing regulations, the Manual for Courts-Martial (MCM), strictly limit the use of pretrial confinement. It can only be imposed when there is a reasonable belief that:

1. You have committed a crime that can be prosecuted at court-martial.
2. That the offense is serious.
3. There is probable cause to believe you are responsible for the crime.
4. That you are considered a "flight risk" meaning you will go AWOL/UA or find another way to avoid a trial.
5. You are a threat to witnesses, might obstruct justice, or tampe with evidence.
6. You are considered a suicide risk.

Process of Pretrial Confinement

The decision to impose pretrial confinement is a multi-step process with opportunities for review:

• Initial Order: A commissioned officer can order confinement based on the reasonable belief criteria.
• 48-Hour Review: Within 48 hours, a neutral and detached officer reviews the order to confirm probable cause for the offense and the need for confinement.
• 72-Hour Review: The service member's commander must decide within 72 hours of confinement whether to release the service member or provide a written justification for continued confinement.
• Ongoing Reviews: The commander and a military judge can periodically review the necessity of confinement throughout the pretrial process.
• At trial you can litigate whether the pretrial confinement was unlawful or in violation of regulations. If you win on the issue, you may get released from confinement and you may get extra goo-time credit toward a sentence if convicted.

Important Considerations

• Alternatives to Confinement: Less restrictive measures like restriction to base or duty station may be sufficient to address concerns.
• Right to Counsel: Service members facing pretrial confinement have the right to consult with a military attorney who can advise them on their rights and fight for their release.
• Impact on Military Career: Pretrial confinement, even if ultimately found not guilty, can have a negative impact on a service member's career.

Balancing Act: Protecting Interests

The use of pretrial confinement is a balancing act. The military has a legitimate interest in ensuring the accused appears for trial, doesn't pose a threat to the community, and doesn't tamper with evidence. However, this must be weighed against the service member's right to freedom before trial. The UCMJ and MCM ensure this balance is maintained by requiring a high standard for confinement and providing opportunities for review.

It Starts the Article 10, UCMJ, Speedy Trial Clock

The speedy trial clock starts on the day after being put in pretrial confinement. The prosecution has 120 to get your case to trial. They must proceed with reasonable diligence.

Conclusion

1. Pretrial confinement is a serious consequence for service members accused of crimes. Understanding the justification, process, and rights associated with it is essential. If facing such a situation, consulting with a military attorney is crucial to navigate the legal process and fight for a fair outcome.

Check the page for Unlawful Pretrial Punishment in violation of UCMJ Article 13.