Pretrial confinement is one of the few decisions in the military justice process that a commander makes alone, before any judge is involved. In September 2022 an analysis of nearly 8,400 Army courts martial reported that soldiers accused of sexual assault were less than half as likely to be confined before trial as soldiers accused of offenses such as drug use and distribution, disobeying an officer, or burglary. Members of Congress responded by asking whether that decision is being made to a consistent standard.
Two things follow from that for a service member. Confinement is ordered by a commander rather than a judge, and the review that follows arrives quickly. Joseph L. Jordan, Attorney at Law represents service members in all six branches worldwide, and a confinement decision is one of the few points in a case where the calendar matters as much as the evidence.
Current Pretrial Confinement Protocol
Pretrial confinement, as defined by the Manual for Courts-Martial, is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses. Under current rules it is imposed by a commander.
Before a commander may order pretrial confinement, the following must be satisfied:
- The offense is triable by court martial
- There is probable cause to believe the person committed the offense
- Confinement is required by the circumstances, because it is foreseeable that the person will not appear at trial or will engage in serious criminal misconduct
- Less severe forms of restraint are inadequate
Pretrial confinement is not standard practice for offenses that would ordinarily be disposed of at a summary court martial.
The Case That Prompted the Review
A case at Fort Bliss drew the attention of Representative Veronica Escobar, whose district includes that installation and who then served as vice chair of the House Armed Services Subcommittee on Military Personnel. A soldier was accused of sexual assault by three women in 2020 and was not placed in pretrial confinement, even after telling investigators he had had sexual contact with an unconscious woman. He was confined only after a further assault. He was convicted of sexually assaulting two women and strangling one of them, and was sentenced to eighteen years and a dishonorable discharge.
The Congressional Concern
Representative Escobar said she had contacted the installation’s commanding general about the case, and that she wanted to use congressional hearings to look at how the same standard could be applied across the military. Representative Jackie Speier’s office said she shared those concerns and regarded pretrial confinement as part of the broader work of military justice reform. Neither member proposed moving the decision to a legal officer or setting a fixed statutory standard. The argument that a uniform standard applied by trained legal officers would produce more consistent outcomes than commander discretion belongs to the wider debate rather than to either member’s stated position.
The Practice as It Actually Runs
What decides confinement in practice is a single document produced quickly. The commander’s memorandum has to state the offense, the probable cause, and why lesser forms of restraint will not serve, and it is generally drafted under time pressure by someone who is not a lawyer. The memorandum is central to the seven day review, but it is not the whole of it. Under R.C.M. 305(i)(2)(A) additional written matters may be considered, including matters submitted by the confinee; the confinee and counsel are allowed to appear before the reviewing officer and make a statement where practicable; a representative of the command may appear; and a victim of the alleged offense has the right to be reasonably heard. The reviewing officer can order release. Mr. Jordan prosecuted cases in which pretrial confinement was sought, which is direct exposure to how the government develops and documents those decisions.
The framing of commander discretion as unreviewed does not match how the process operates.
The Rules for Courts-Martial impose a layered review on three clocks. Within 48 hours of confinement under military control, a neutral and detached officer must review whether probable cause supports continued confinement (R.C.M. 305(i)(1)). Within 72 hours of ordering confinement or learning of it, the commander must decide whether confinement continues (R.C.M. 305(h)(2)(A)). Within seven days, a neutral and detached officer appointed under service regulation reviews both the probable cause determination and the necessity for continued confinement (R.C.M. 305(i)(2)). A commander who is neutral and detached and who acts within 48 hours can satisfy the 48 hour determination through the 72 hour decision. Once charges are referred, R.C.M. 305(j) provides for review by the military judge.
The rule allows a commander who is neutral and detached to satisfy the 48 hour determination with the 72 hour decision, so in practice the first two steps are sometimes one act by one officer. The seven day reviewing officer need not be a judge advocate; the requirement is neutrality and detachment from the case, not legal qualification.
In practice, many installations assign this function to magistrates who are judge advocates. But the rule permits other neutral and detached officers to serve, and describing the reviewer as necessarily a legal officer overstates the requirement.
The reviewing officer receives documentary and testimonial evidence, and alleged victims may provide input. The officer applies the criteria listed above and determines whether continued confinement is warranted. Confinement can be terminated at that review.
Commanders also routinely seek advice from a judge advocate before ordering confinement. The commander decides whether to follow that advice, but the advice is part of the process.
So the decision is reviewed promptly by someone outside the chain that made it. Whether a judge advocate was consulted before the order is a fact that varies by command and by case, and it is worth establishing in your own.
Where the Reform Argument Has Force, and Where It Does Not
There is a view from inside the process that neither side of this argument tends to state. Mr. Jordan served as an Army prosecutor at Fort Hood, Texas, and with the 2nd Infantry Division in South Korea, where the inconsistency in confinement decisions came less from commanders lacking a standard than from the speed at which they had to apply one, on incomplete information, with the legal office consulted rather than deciding.
The strongest version of the reform argument is about consistency across commands rather than about the absence of review. Different commands do reach different decisions on similar facts, and that is a real observation.
The weaker version is that commanders act on personal feeling with no check at all. That understates the review structure: a confinement order is reviewed by a neutral and detached officer within days, whether or not a judge advocate advised the commander beforehand. The sharper question is how much variation across commands is acceptable and what would reduce it.
If You Are Facing Pretrial Confinement
Timing controls what can be done, and release is not confined to a single moment. R.C.M. 305(h)(2)(B) requires the commander to direct release unless the criteria for confinement are met. Under R.C.M. 305(g), any commander of the confinee, the officer conducting the seven day review, and, once charges are referred, a military judge detailed to the court martial may all direct release. What is true is that the early stages arrive quickly: R.C.M. 305(f) provides for military counsel before the initial review or within 72 hours of a request, whichever comes first. Confinement is a situation in which the first phone call matters, because these reviews run on their own schedule whether or not counsel is ready for them.
Confinement before trial affects your ability to participate in your own defense, your pay status in some circumstances, and your family. It is also reviewable.
Counsel can challenge confinement at the magistrate review, seek release under the Rules for Courts-Martial, and, where conditions violate the standards in Articles 12 and 13, seek confinement credit against any eventual sentence.
Speak With a Court Martial Attorney
If you are facing charges that carry the possibility of pretrial confinement, Joseph L. Jordan, Attorney at Law represents service members in all branches worldwide. Confinement decisions move faster than the rest of a case, and the window for challenging one is measured in days.
Call (888) 643-6254 to discuss your situation.