While Congress has recently overhauled parts of the military justice system, some members of Congress believe further changes need to be made. Democratic Representative Veronica Escobar is calling for pretrial confinement to be issued based on legal advice and not by the ranking Commander.

Current Pretrial Confinement Protocol

Pretrial confinement, as defined by the MCM, is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges. Currently pretrial confinement is imposed by a Commander, at their discretion, for anyone subject to a court martial hearing.

In order for a commander to order pretrial confinement 4 criteria must be met:

• The offense committed is triable by court-martial
• The individual to be confined committed said offense
• The confinement is required by the circumstances because it is forseeable that:
  • The confinee will not appear at trial
  • That the confinee will engage in serious criminal misconduct
• Less severe forms of restraint are inadequate

If a person is charged with an offense that is usually tried at a summary court martial pretrial confinement is not standard practice. It is only for charges relating to robbery, assault, and drug use and distribution that traditionally will be subject to pretrial confinement.

Private First Class Alavarado

Alavarado’s case is what caught the attention of Rep. Escobar during a subcommittee hearing. In 2020 Alavarado was accused of sexual assault by three separate women. After the accusations were made, Alavarado was not put on pretrial confinement leading up to his trial. He avoided detention for months; it was only after more women came forward accusing him of sexual assault was he detained. Alavarado has since been convicted of 2 counts of sexual assault and strangling one of the women.

This is not the only case where a military member has been accused of sexual assault and been allowed to remain free. Current representatives of Congress are calling for standard practices to be implemented for certain types of court martials- robbery, assault, and drug use and distribution.

House Subcommittee on Military Personnel

Representative Escobar and Rep. Speier have spoken out about the current pretrial confinement protocols. It wasn’t until the case regarding Private First Class Alavarado that pretrial confinement came under scrutiny. Alavarado’s case showcased again that military members who are accused of sexual assault are less than half as likely to be placed in pretrial confinement compared to those accused of drug use and distribution and robbery.

The House Committee on Military Personnel has issues with cases like Alavarado’s. He had several accusations made against him by different women showing a clear pattern of repeat offending. Escobar believes that Commanders should not be the ones making the call on whether or not to impose a pretrial confinement.

She and Speier both believe that there should be a clear, set standard of protocol in place dictated by legal advisors. Commanders in charge of putting a military member in pretrial confinement are not necessarily versed in the legal process. There is too much room for bias to occur.

The military justice system has undergone recent reforms, specifically in cases of sexual assualt. While traditionally this current system has been unopposed, there are now those who speak out against it saying pretrial confinement should be delegated to those trained as a military lawyer. Escobar herself states that the possibility of taking away Commanders’ control over pretrial confinement is on the table.

Commander’s Power Over Pretrial Confinement

In the current military justice system, Commanders are very judicious in regard to pretrial confinement. Whenever a Service member is placed into pretrial confinement, a hearing must occur within 7 days of confinement.  At Fort Cavazos (Fort Hood), the hearing officers are the magistrates on post. These magistrates are typically Judge Advocates. Judge Advocates provide legal advice to various Commanders and act as prosecutors and defense counsel during court-martials.  The hearing officer will hear evidence and determine whether or not continued pre-trial confinement is warranted.  They examine the previous discussed criteria for confinement.  The hearing officer will consider documentary and testimonial evidence.  Additionally, alleged victims are allowed to provide input.  Ultimately, the hearing officer will weigh all the evidence against the criteria required for confinement to determine if continued confinement is warranted.  It should be noted, that Commanders usually seek advice from a Judge Advocate before placing a Service Member in confinement.

While Rep. Escobar believes that Commanders shouldn’t have the power over pretrial confinement based on the fact the Commanders aren’t versed in the legal process the actuality of it is the opposite. The decision to impose pretrial confinement on a military service member is not a choice made lightly or based on personal feelings. Commanders making these decisions are well aware of the impact of pretrial confinement and are choosing to do so based on the protocols in place, nothing more.  Rep Escobar’s concerns are misplaced.  There are systems in place to protect the Command’s interests as well as any accused’s rights.  Commanders do not have the ultimate authority to place an accused in confinement.  They receive advice from Judge Advocates on whether or not placing a Servicemember in pretrial confinement is warranted and the Commander chooses whether or not they wish to follow that advice.  There are many factors that are analyzed to determine if pre-trial confinement is warranted.  Our system of jurisprudence does not simply throw accused into confinement merely because accusations are lodged.  One is still innocent until proven guilty in the United States of America.

AGGRESSIVE REPRESENTATION FROM A COURT MARTIAL LAWYER

If you are brought up on charges which allow the possibility for pretrial confinement your freedom isn’t the only thing at risk. These are serious charges that can impact your rights, freedoms and military career. You need to make sure you have the right lawyer fighting for you.

At Joseph L. Jordan, Attorney at Law, we are dedicated to providing an aggressive defense for our client's case proceedings and we are not afraid to challenge evidence held against you. When you work with Joseph L. Jordan, Attorney at Law, you will be working with an understanding and highly experienced military defense lawyer who has defended all branches of service and is available to clients stationed throughout the world. You have a lot to lose when you are faced with a court martial. Don’t hesitate to contact Joseph L. Jordan, Attorney at Law right away.