Under the Uniform Code of Military Justice (UCMJ), Commanders have the authority to place service members in pretrial confinement under certain circumstances. Since this is such an extreme measure, it only makes sense that the service member has rights under due process of the law.
What Are the Requirements for Pretrial Confinement?
In order for a Commander to have the right under the law to place a service member in pretrial confinement, he or she must have a reasonable belief (i.e probable cause) that the following requirements are met:
- The offense that is triable by court-martial has, in fact, been committed;
- The individual who would be confined is responsible for committing it; and
- The circumstances require confinement.
However, it’s important to note that the person who directs the confinement, while required to consider the facts and circumstances of the suspected offenses, is not required to make a detailed analysis as to why the individual must be confined. For instance, all of the details of a violent crime don’t need to be known at the time of placing the individual in pretrial confinement.
What Are the Rights of the Confined Service Member?
When placed in confinement, a service member must be informed of the following:
- The nature of the offenses related to the confinement;
- Their Miranda Rights (the right to remain silent, the right to an attorney, etc.); and
- The procedures that will be used to review the pretrial confinement.
Military counsel must be provided to any service member (upon request), prior to the initial 7-day review hearing or within 72 hours of first communicating the request, whichever comes first. It’s important to note that a confined service member does not have the right to choose their military counsel.
How is Pretrial Confinement Reviewed?
Pretrial confinement may be reviewed by commands under three opportunities:
- A 48-hour review;
- A 72-hour review; and
- A 7-day review.
The 48-hour Review
Within 48 hours of confinement, a neutral and detached officer must review the decision of confinement to determine whether probable cause exists that they committed an offense triable by court-martial and that the circumstances require the confinement.
The 72-hour Review
Within 72 hours of confinement, the service member’s commander must either direct them to be released from the confinement or submit a written memo as to why the confinement is necessary. To keep the service member in pretrial confinement, the commander must believe with probable cause that:
- The offense triable by a court-martial was committed;
- The individual confined is the one who committed the offense;
- The confinement is necessary because it’s foreseeable that the confined would not appear at future hearings or that he or she will continue to engage in serious criminal misconduct; and
- That any less severe types of restraint would be inadequate.
The 7-day Review
Within 7 days of confinement, a neutral and detached officer must hold a hearing to review whether there was probable cause and whether the individual need be confined. At the 7-day review hearing, the service member can provide evidence on their own behalf. If continued confinement is approved, the service member may request that the decision be reconsidered if they are able to provide “significant information not previously considered.”
In determining whether a service member should be subject to pretrial confinement, several factors are considered:
- The amount of evidence against them
- The facts and nature of the offenses charged (or suspected)
- Whether there are extenuating circumstances
- The service record of the accused
- The mental condition and character of the accused
- The accused’s ties to his or her community
- The accused’s record concerning appearances at or flight from other proceedings
- The likelihood of the accused committing additional serious criminal acts should they be released
The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime
The U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible.
If you are a military service member and are under investigation or have been charged with a crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!
