UCMJ and Pretrial Restraint

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:

1. Conditions on liberty,
2. restriction in lieu of arrest,
3. arrest, and
4. confinement.

See R.C.M. 304.

1. Conditions on liberty are “orders directing a person to do or refrain from doing specified acts.” These are sometimes called ‘stay-away’ orders and are basically moral restraints. No physical constraint is involved.
2. Restrictions in lieu of arrest are “orders directing the person to remain within specified limits.” These individuals normally perform full military duties. No physical constraint is involved.
3. Arrest is “the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits.” These individuals may not be required to perform full military duties such as supervising, serving as guard, or bearing arms. They may be required to do ordinary cleaning or policing or to take part in routine training and duties. Again, no physical confinement is involved.
4. Confinement is physical restraint. This is called “pretrial confinement” and is specifically addressed in R.C.M. 305. This is physical confinement which deprives a person of his liberty and freedom.

Who may order the restraint of personnel?

1. Of officers-only commanding officers to whose authority the officer is subject. This authority may not be delegated.
2. Of enlisted personnel-any commissioned officer. This may be delegated by the commanding officer to warrant, petty, and non commissioned officers in the command.

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:

1. An offense triable by court-martial has been committed;
2. The person to be restrained committed the offense; and
3. The restraint ordered is required by the circumstances.

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:

1. The nature of the offenses for which held;
2. The right to remain silent and that any statement made by the person may be used against the person;
3. The right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and
4. The procedures by which pretrial confinement will be reviewed.

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.

1. Day for day credit for lawful pretrial confinement. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
2. Additional credit for each day of unlawful pretrial confinement. See United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983). “Suzuki credit,” as it is sometimes referred to is usually 3-1.
3. Credit for restriction tantamount to confinement. See United States v. Mason, 19 M.J. 274 (C.M.A. 1985).
4. If the government doesn’t follow the procedures in R.C.M. 305, then under United States v. Gregory, 21 M.J. 952 (A.C.M.R. 1986), there may be additional administrative day-for-day credit for the government’s failure to follow the procedural requirements of command review and written memorandum supporting continued pretrial confinement, plus review by a neutral and detached officer. This was a case where ‘restriction tantamount to confinement’ was the issue.
5. If the person is in pretrial confinement in a civilian jail as a result of a DoD contract, there have been some cases where additional credit is given because the conditions is the civilian jail don’t meet the DoD criteria. See e.g., United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007).

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.

1. You have effectively begun serving your sentence.
2. You remain in a full pay status and are paid during this pretrial confinement time while effectively serving your sentence. Once your sentence is announced your pay will stop after 14 days for various reasons to do with execution of punishments. (Note, pay stops at the end of your enlistment even if in pretrial confinement by operation of statute, and BAH may stop while confined.)
3. You don’t have to worry about being constantly hassled by the command.
4. The UCMJ, Article 10, speedy trial clock is running. Basically 120 days from imposition of restraint to arraignment.

Waiver. If you believe you have been unlawfully restrained or unlawfully punished by pretrial restraint do not remain silent.

1. Politely and professionally raise the issue with the confinement staff using the appropriate request chit. Document what you have done to assert a right.
2. Tell your military lawyer.
3. Ensure your military lawyer makes an issue of it when it is happening. And document your efforts to correct the situation.
4. Raise the matter in a pretrial motion to get the illegality stopped or get credit on your sentence.
5. Remember, a guilty plea may waive an unlawful punishment or pretrial confinement motion. Discuss this with your military defense lawyer.

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