ARTICLE 96 RELEASING A PRISONER WITHOUT AUTHORITY

Article 96 covers incidents where a person who has been confined is released although proper authority is not given. Several different situations are covered under this article as follows: releasing a prisoner without proper authority, letting prisoners escape from custody or confinement through neglect, allowing or permitting the prisoner to escape by design.

The accused, who is the person who released the prisoner without authority, faces punishment and the court martial process determines this punishment. One important point to note about this article is that the accused shall be charged with violation irrespective of whether the prisoner was taken into custody or confined in compliance with the law.

a) Release of the prisoner without authority

Elements:

• That the accused released a specific prisoner who had been committed to his charge.
• That the release of the prisoner was carried out without proper authority.

Note: ‘Release’ refers to an act that demonstrates to the prisoner that he is no longer under lawful restraint.

Maximum Punishment: Dishonorable discharge, forfeiture of all allowances and pay and, two years confinement is the maximum punishment the accused faces if found guilty of violating this article.

b) Allowing a prisoner’s escape from custody or confinement through neglect

Elements:

• That the accused was in charge of a specific prisoner.
• That the escape of the prisoner took place.
• That the accused failed to take reasonably prudent care to ensure that the prisoner did not escape.
• That the prisoner escaped as a proximate result of the accused individual’s negligence

Note: Here, it is necessary to prove that the prisoner escaped as the direct result of the accused’s neglect. The status of the prisoner after the escape does not impact the charges brought against the accused. For example, even if the prisoner has been captured after escape, the accused still faces the same charges for being negligent enough to allow his escape.

Maximum Punishment: Bad conduct discharge, forfeiture of all pay and allowances and one year confinement is the maximum punishment granted for this charge.

Note: If the accused failed to take reasonable care as any other person might have taken under the same circumstances and the prisoner escaped as a result of this failure, that accused is found guilty of facilitating escape through neglect.

c) Suffering the prisoner’s escape intentionally or through design

Elements:

• That the accused was in charge of a specific prisoner.
• That the accused deliberately allowed or permitted the prisoner to escape.
• That the prisoner’s escape was a result of the accused’s actions.

Note: Circumstantial evidence is permitted during trial to show the accused’ intent to allow or permit the prisoner to escape. In this context, the word ‘suffer’ means that the accused allowed or permitted the prisoner to escape or that he failed to hinder or forbid him from doing so.

Maximum Punishment: Dishonorable discharge, forfeiture of pay and allowances, two years confinement is the maximum punishment the accused can expect to face.

To learn more about this punitive article refer to the Manual for Courts Martial.

POINTS TO NOTE ABOUT ARTICLE 96

• The prisoner may be an enlisted member of the United States armed forces or a civilian.
• The term release here refers to the removal of lawful restraint in some manner by the person who is in charge of the prisoner instead of the prisoner himself.
• The charges brought against the accused under this article hinge on the critical fact that he lacks the right authority to release the prisoner. With respect to a post- trial prisoners, the release should be authorized at least by the commander who had called for the legal process in which the prisoner was convicted.