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Confinement Credit & How CCFs Can Inhibit Military Justice

When a soldier is charged for a crime and there is concern about his or her attendance to the trial, then a judge may find that confinement for that soldier is the best course of action. Pretrial confinement ideally happens at military confinement facility, but when there is not one nearby, the soldier may be held at a civilian confinement facility (CCF) that has been contracted by the Department of the Army and the Department of Justice. However, there are very stringent and specific standards under Article 13 used to regulate the conditions of detained soldiers awaiting trial—and when these standards are violated, it is possible for the subsequent trial to result in something called confinement credit.

Confinement credit occurs when a judge finds that a soldier's pretrial confinement was not up to military standards or was punitive in some way. When this happens, confinement credit can then be applied against the soldier's sentencing. In this way, it is possible for a soldier to be found guilty during a Court Martial and then receive truncated prison time—or no prison time at all—due to the improper pretrial confinement already "served." As you might imagine, this can be very vexing for trial counsel and chiefs of justice in charge of overseeing cases and ensuring that military justice is served.

To truly understand how and why confinement credit occurs, one must review the needs and processes of pretrial detainment and identify the mishandling that occurs in this procedure. These procedural shortfalls not only can subject untried soldiers to unduly harsh conditions, but often prevent proper sentencing following a guilty verdict at a Court Martial.

How Are CCFs Qualified?

All military branches take the welfare of their personnel very seriously and, in the case of pretrial detainment, take a lot of care in qualifying CCFs for this purpose. Department of Defense Instruction 1325.07 allows for the confinement of soldiers awaiting trial in civilian prison facilities, but outlines a number of requirements for a facility to be first deemed appropriate for this use.

To house soldiers awaiting trial, a CCF must:

  • Be used by U.S. Marshals or
  • Be accredited by the American Correctional Association
  • Be able to offer and maintain Level 1 (minimum security) housing for soldiers

While these requirements are most often used to ensure proper conditions for soldiers awaiting trial, they are also used for post-trial soldiers who are serving less than 30 days or waiting for a transfer to a military confinement facility.

Proper Conditions for Confined Soldiers

Beyond its accreditation and basic facilities, a CCF must be able to offer conditions and resources to safely detain a soldier awaiting trial. While some of these provisions are found in Article 12, they are most thoroughly detailed in Army Regulation (AR) 190-47, The Army Corrections System.

AR 190-47 addresses:

  • Allocated square footage for the detained soldier
  • Proper segregation from the rest of the prison population
  • Available medical and healthcare services
  • Custody and disciplinary procedures
  • Access to mail, photos, visitors, and chaplain services
  • Restrictions on solitary confinement and work details
  • Complaint processing

In addition to Article 12 and AR 190-47, the Army Corrections Command has authored the Local Civilian Confinement Facility Contract Guidance: a checklist that establishes whether CCFs have basic health and living standards. CCFs need to review this list in order to apply for the federal contracts that would allow them to house detained soldiers.

Common Violations & Complications

Despite the careful considerations and strict regulations, violations of AR 190-47 are fairly common in CCFs. While some of these are violations that—even if recognized by a judge—will not necessarily result in confinement credit, others are more serious, especially when you consider that the detained soldier has not been found guilty of any charge yet.

Common AR 190-47 violations involve:

  • Failure to properly segregate the soldier from the prison population
  • Failure to exclude detained prisoners from work details
  • Failure to provide suicide watch
  • Failure to provide adequate medical and psychological treatment
  • Failure to exclude detained prisoners from solitary confinement
  • Failure to provide certain confidentiality and security measures
  • Failure to provide proper uniform

In Major Marc Wm. Zelnick's recent paper in The Army Lawyer, "Managing an Installation's Utilization of a Civilian Confinement Facility: A Primer," the major recounts the case of Airman Zarbatany, who was held in solitary confinement for 119 days, pepper sprayed, held with other prisoners, and denied basic medical and hygienic services in an Anchorage prison. By the time he had reached trial, the judge ruled that Zarbatany's confinement credit totaled 595 days.

Conditions that harm a soldier's welfare are the most serious consequences of improper soldier confinement, but other elements also hurt the judicial process. Payroll issues, inordinate time commitments for lawyers making trips and dealing with CCF operating procedures, and deteriorating morale for commanders and judge advocates who anticipate confinement credit also impede proper trials under the Uniform Code of Military Justice and Rule for Courts-Martial.

Finding New Solutions

Establishing solutions for proper soldier confinement in CCFs requires a multi-faceted effort, but largely rests with the Chief of Justice (CoJ) to lead and organize. In his same paper, Major Zelnick offers a number of measures a Chief of Justice can make when they find themselves requiring and retaining a CCF for detainment purposes. These include:

  • Review of the federal contract with the CCF
  • Investigation of any prior or issues with CCF regulatory compliance
  • Request a few review of the CCF contract with the servicing Administrative Law office
  • Establish a "working group" of contracted and CCF staff for communication and supervision

Major Zelnick also notes that trial counsel may also be helpful in helping determine if confinement is even necessary and, when it is, deploying frequent status checks at the CCF by paralegals. Unfortunately, as recent as last year, the Anchorage CCF continued to abuse military confinee's. Recently Mr. Jordan had a client that was housed at the Anchorage CCF and he and his legal team were able to secure 10 months of confine credit to be attributed to the client's overall sentence even though the client only spent about 5 months in confinement. The confinement facility failed to ensure that the client was housed properly, and more egregiously, failed to ensure that the client met all of his medical and mental health appointments. Mr. Jordan and his legal team cited the Zarbatany case as part of their motion to the Judge to grant unlawful pre-trial confinement credit.

While pretrial confinement is an important part of military law procedure, vigilance and careful considerations are required to make sure that is properly conducted. When a soldier is subjected to harsh or punitive conditions before a verdict is found, the Courts-Martial process is tainted and the pursuit of justice is hampered. It is up to all parties, on both sides of the courtroom, to help ensure that those suspected of crimes are only detained when necessary and, when they need to be, it is in compliance with military regulations put in place to protect the judicial process.

If you are facing a military charge and are not sure where to turn, then we encourage you to contact Joseph L. Jordan, Attorney at law. Attorney Jordan has been an advocate for military defendants all over the country and beyond. Call his firm now to schedule a free case evaluation with a knowledgeable and dedicated military defense lawyer ready to protect your rights.

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