Pretrial Confinement Review

The command determines whether a soldier is placed into pretrial confinement.  Unlike in the civilian system, the military does not have a bail system.  In other words, once placed into pretrial confinement, a soldier will remain in pretrial confinement unless released by the command, a military magistrate or a military judge.

Under the Manual for Courts-Martial (M.C.M.), before a soldier may be placed into pretrial confinement, there must be: “probable cause” (a reasonable belief) that the soldier committed an offense triable by courts-martial; a determination that confinement is necessary because it is foreseeable that the soldier will not appear at trial or will engage in serious criminal misconduct; and a finding that lesser forms of restraint are inadequate.  See M.C.M., United States, Rule for Courts-Martial (R.C.M) 305(h)(2)(B) (2008).

The decision to confine a soldier is subject to several reviews:

a.  The first required review must take place within 48 hours by a “neutral and detached officer.”  The neutral and detached officer must review the initial confinement decision in accordance with R.C.M. 305(i)(1) to determine whether probable cause, as detailed above, for pretrial confinement exists.

b.  Second, within 72 hours, the commander must document the grounds for his determination in a written memorandum, along with the reasons for continued pretrial confinement.  See R.C.M. 305(h)(2)(C). Typically, if the commander is “neutral and detached” and completes his 72-hour review within 48 hours, then this single memorandum will satisfy both 48 and 72-hour review requirement.  See R.C.M. 305(h)(2)(A).

c.  Third, under R.C.M. 305(i)(2) and Army Regulation (AR) 27-10, a judge advocate appointed as a military magistrate must, within 7 days, review “the probable cause determination and necessity for continued pretrial confinement.”  See U.S. Department of Army Regulation 27-10, Legal Services: Military Justice paragraphs 5-15, 9-5 (16 November 2005).

d.  Fourth, after referral of charges to a court-martial, a soldier may request the military judge assigned to the case review the appropriateness of the pretrial confinement.  See R.C.M. 305(g) and (j) (Absent an abuse of discretion or new evidence establishing the soldier should be released, the military judge does not have the authority to overturn a 7-day reviewing officer’s decision that pretrial confinement should continue).

As discussed in my earlier post here, a soldier may file an Article 13 motion for unlawful pretrial punishment if the conditions of the confinement are “more rigorous than the circumstances require” to ensure the soldier’s presence at trial.  This motion, however, much like the pretrial confinement review by the military judge, must take place after referral.

Inspector General

Each service has a regulation that governs the activity of its respective Inspector General (IG).  In the Army, for instance, that regulation is Army Regulation 20-1 while in the Navy SECNAV Instruction 5430.57G details the IG’s mission and function.  While it is true that a pretrial confinee may complain to the IG about the conditions of his confinement, the IG’s role in any such case is limited.  Essentially, the IG can only investigate a complaint and then is required to turn the matter over to the command, a criminal investigative unit, or the Judge Advocate’s office.  For instance:

a)  Under Army Regulation 20-1, when the IG receives allegations of a criminal nature it must refer the matter to the Criminal Investigation Command (CID) or the Provost Marshal.  See U.S. Department of the Army Regulation 20-1, Inspector General Activities and Procedures (29 March 2002) [hereinafter AR 20-1] para. 8-10c(4)(a).  Likewise, under NAVSEC Instruction para. 7(c) the Navy Inspector General “shall avoid investigations that focus on individual criminal activity, because those types of investigations fall within the expertise and authority of NCIS.”

b)  The IG should not intervene in situations that have other means of redress or remedy until the complainant has exhausted all administrative remedies, including appeal procedures.  In such cases, IG involvement will be limited to a due process review.  See AR 21-1, para. 4-4f-k; NAVSEC 5430.57G, para 7.  The following areas are generally not appropriate for IG intervention: courts-martial, nonjudicial punishment, evaluation reports, involuntary separation actions, reports of survey, reprimands, claims, and complaints made under Article 138, Uniform Code of Military Justice.  See AR 21-1, para 4-4j; NAVSEC 5430.57G, para 7.

Even if the Inspector General does investigate an issue, it has no power of enforcement.  Instead, the results of the investigation are turned over to the agency or command with the authority to act.  Thus, in the case of a pretrial confinement issue, this would mean the commander of the confinement facility or the Staff Judge Advocate.  In fact, the Navy IG recommends complaints regarding treatment of prisoners should be addressed directly to the Staff Judge Advocate’s Office.  See U.S. Navy Inspector General Agency, Treatment of Prisoners, at here (last visited Dec. 30 2010).

Given the above, the best chance a soldier has to address pretrial confinement conditions is to raise the issue directly with the confinement facility, the chain of command and the Staff Judge Advocate.  If relief is not granted after raising it with the confinement facility, the chain of command and the Staff Judge Advocate, then the next opportunity to address the issue is after referral with the military judge.