Pretrial confinement in the military is a form of physical restraint used while a servicemember awaits trial or a hearing. The purpose of this confinement is to prevent servicemembers from escaping justice or worsening existing situations. It is also useful for protecting military readiness by removing those accused of committing offenses against other service members.
Service members enjoy the same Fourth Amendment rights as civilians, which means they cannot go into pretrial confinement in the absence of a reasonable belief that they:
- Committed a serious offense that could lead to a court-martial
- Might try to flee
- Need confinement due to the circumstances
Unlike civilians, who might lose their jobs or income while confined before trial, service members in pretrial confinement continue to receive full pay and benefits.
Military justice recognizes different forms of restraint, such as conditions on liberty, restriction in lieu of arrest, arrest, and confinement. Each type has specific rules. For example, a service member under arrest might be restricted to a ship or base but still able to perform their duties during work hours. The most severe form of restraint, confinement, involves placing the service member in a brig or secured area under guard until their trial or hearing concludes.
Commanding officers hold the authority to decide on pretrial confinement for officers, though they can delegate this power to impose it on enlisted personnel to non-commissioned officers.
Service Member Legal Rights
Military service members under pretrial confinement have the right to a quick review of the confinement decision. A review officer must examine the decision to confine a servicemember within 48 hours to confirm that the confinement is necessary and lawful.
After this initial check, a commanding officer must perform another review within 72 hours to make sure that continuing the confinement is appropriate. If a different officer ordered the confinement, the commanding officer’s review within 48 hours covers both requirements.
Additionally, within seven days of the confinement, a neutral and independent officer detached from the command must conduct a further review. This officer checks that there is enough evidence to believe the service member committed a crime and that confinement is the only way to prevent them from fleeing or committing more serious offenses.
During these reviews, the confined service member has the right to a military lawyer, provided at no cost. This lawyer can assist in their defense and ensure the military is upholding the service member’s rights throughout the legal process.
Impacts of Confinement on Service Members
Pretrial confinement can deeply affect service members both legally and emotionally. Legally, being in confinement can influence the outcome of a military trial. For example, if a military judge finds that the confinement was not justified, they might release the service member and possibly reduce any sentence ordered later. Although service members continue to receive their pay and do not lose their jobs during confinement, the experience can still have long-term effects on their military careers.
Emotionally, pretrial confinement can be very challenging. Being separated from family and community can cause significant stress and anxiety. This isolation can lead to feelings of loneliness that severely impact a servicemember’s mental health. The stress of awaiting trial and worrying about the future can also take a heavy toll that makes it harder for service members to cope with their daily lives and duties.
Legal Representation for Service Members
If you or a loved one is facing pretrial confinement in the military, contact Court Martial Law Division – A Division of Aviso Law LLC for a free initial consultation. Our team will work with you to discuss your situation and provide guidance on the best path forward.
