How Does Pretrial Confinement Work for Military Members?

When a person is charged with a crime, the judge may order pretrial confinement. The military version of pretrial confinement shares some similarities to civilian rules, but there are some notable differences. By understanding how pretrial confinement works for military members, you’ll know what to expect if this has been imposed on you.

How Pretrial Confinement Begins

Under civilian law, police arrest offenders and take them to jail, where they are confined until the trial date arrives or they post bail.

In the military, apprehended service members are typically turned over to a commanding officer, who decides what type of detainment to impose. There is no such thing as bail in military pretrial confinement, and service members are often not fully confined. This makes it less severe than the arrest and confinement of civilians.

Deciding When to Confine a Military Member

The same Fourth Amendment rights that apply to civilians are also given to service members. This states that accused members can only be detained while awaiting trial if they meet one of these requirements:

  • There is probable cause that the service member committed the offense.
  • The offense is serious enough to warrant a court-martial.
  • The accused is at risk of fleeing or committing another crime.
  • The confinement order is deemed necessary under the circumstances.
  • Lesser forms of restraint would be inadequate.

Note that enlisted service members may be placed into pretrial confinement by any commissioned officer. However, military officers may only be confined by a commanding officer. The decision is the subject of several reviews, which must be conducted within 48 hours. This rule is consistent with the civilian review requirement.

After 72 hours, the confined service member may request that a commanding officer review whether continued confinement is appropriate. Further reviews may be requested from military magistrates and judges to prevent unlawful detainment.

Types of Pretrial Confinement

The military recognizes four forms of pretrial restraint:

  1. Conditions on liberty direct an accused person to do or refrain from doing certain things. They are typically imposed by a commanding officer on a temporary basis. One example is forbidding a group of sailors from going ashore during a port visit because they were involved in a fight the day before. Once the ship sets sail, full liberties may be restored.
  2. Restriction in lieu of arrest is an order directing an accused service member to remain on base, at their post, or in their quarters, pending trial. Restriction sometimes allows the service member to continue performing their assigned duties, though they are not permitted to leave the secured area.
  3. Arrest has a technical meaning in the military that differs from civilian law. When a service member is arrested, they must remain within specified limits, such as a shipboard or command spaces. The arrested person may have certain duties revoked, such as handling weapons or commanding others. They may also be sent to another location and given menial tasks, such as painting or patrolling an area.
  4. Confinement is the physical restraint of an accused service member, depriving them of their freedom of movement until the trial. This usually involves sending the member to a physically secured area known as the brig or stockade.

Pay During Pretrial Confinement

An important difference for service members is that they continue to draw full military pay and allowances while in pretrial confinement. Their income typically doesn’t stop unless they are convicted in a court-martial, and the sentence involves loss of pay and allowances. This differs from civilians who usually do not receive pay and may even end up losing their job because they can’t go to work.

Ensuring Proper Conditions for Confined Service Members

Ideally, pretrial confinement occurs at a military confinement facility. When there isn’t one nearby, a civilian confinement facility (CCF) contracted by the Department of Justice may suffice. CCFs must meet numerous requirements to be deemed appropriate for this use.

Wherever the confinement takes place, the facility must offer conditions and resources that ensure basic health and living standards. This may include:

  • Adequate square footage for the detainee to move around
  • Proper segregation from the main prison population
  • Access to medical and psychological care
  • Access to mail, visitors, and chaplain services

Seeking Justice for Rule Violations

Articles 12 and 13 of the Uniform Code of Military Justice (UCMJ) have very stringent and specific standards used to regulate the conditions of detained service members awaiting trial. Once the charges are referred to a court-martial, the confined service member may ask the military judge presiding over the case to review the circumstances surrounding their confinement.

If any standards were violated, the military judge might choose to release the service member or offer confinement credit for being inappropriately detained. Confinement credit effectively reduces the sentence by applying pretrial confinement time toward the punishment. As a result, service members found guilty of a crime may receive truncated prison time—or no prison time at all.

Know Your Legal Rights

While pretrial confinement is an important part of military procedure, it must be conducted in compliance with military regulations to be considered legal and fair. If you or a loved one is subjected to harsh or punitive conditions while awaiting trial, let Joseph L. Jordan, Attorney at Law, help defend your rights. Mr. Jordan is proud to advocate for military defendants stationed around the world. He has over a decade of experience as an accomplished military defense attorney and leverages his prior service as an Army JAG officer.

You have sacrificed so much to serve your country—now let Mr. Jordan serve you! Call us toll-free at 800-580-8034 or 254-221-6411 to request a free case evaluation today.

  • A military attorney performs many of the same duties as his civilian counterpart. The difference is that the attorney works for and with military personnel. Military legal personnel participate in court proceedings in courtrooms on military bases all across the globe.
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