The military handles pre-trial much confinement differently than the civilian system. In the civilian criminal justice system, the court relies on bail to secure the presence of the accused at trial. When determining whether to release the accused on bail, a civilian court will hold a hearing to determine the likelihood of the accused committing more crime if released from jail and whether s/he is a flight risk. The military does not have a bail system since every servicemember is subject to command authority and control and it is generally presumed that this is sufficient to exercise control over the accused. However, when the command determines that this is not enough, a servicemember will be placed in pre-trial confinement.
There are very specific rules regarding who can order pre-trial confinement, what conditions it may be ordered under, and what impact it may have on a sentence of confinement at court martial. If your loved one has been placed in pre-trial confinement, retaining our Honolulu-based pre-trial confinement lawyer could be essential to protecting the rights of the accused and remedying this situation. Our defense attorney has vast experience in this area of the law and has helped many servicemembers get released from pre-trial confinement.
Rules for Court-Martials 304 within the Manual for Court-Martials lists the types of pretrial restraint that a person accused of violating the UCMJ may be subject to. These include conditions on liberty, restriction in lieu of arrest with continuing performance of full military duties, and arrest that may involve limitations on the performance of duties. Pre-trial confinement is also listed as an option for pre-trial restraint under this rule, but is more specifically addressed in R.C.M. 305.
Under R.C.M. 305, a military member or officer may only be confined if they committed an offense triable by court-martial and the circumstances demand their confinement. This generally means that the military sees the accused party as a flight risk or considers them likely to reoffend. Military pre-trial confinement must be based on a finding that other forms of restraint would not be enough to secure the presence of the accused at trial and it is not likely that the accused will commit further serious misconduct.
Upon being confined, the accused party must be informed of the offense(s) their confinement is based on, the right to remain silent, the right to either retain a private defense lawyer or request that military counsel be assigned to them, and the procedures for reviewing the order for their confinement. Working with a Honolulu-based pre-trial confinement attorney is often crucial not only to understanding these rights, but to enforcing them in the event of a violation.
Under R.C.M. 305(i), a “neutral and detached officer” must review whether there is probable cause for pre-trial confinement within 48 hours of the initial order. If continued pretrial confinement is approved, the commander will prepare a memorandum within 72 hours stating the reasons why the requirements for pre-trial confinement have been met, and may include witness statements, investigative reports, or other official records. This memorandum will be forwarded to a “7-day reviewing officer.” Within 7 days of imposition of confinement another “neutral and detached officer” will review the need for continued confinement at a hearing.
In reality, the appointed “neutral and detached officer” is often another officer in the command. As such, the government will treat these requirements as mere formalities or “speed bumps.” If pre-trial confinement is based on unlawful grounds, or inappropriately continued, it may be appropriate to seek release through a writ to the court of criminal appeals. Our skilled military defense lawyer in Honolulu could help someone who has been subject to unlawful pre-trial confinement.
Not every court-martial involves a loss of physical liberty prior to trial, but those that do tend to involve serious allegations and the perceived risk of repeat offenses or flight before trial. For this reason, the procedures for contesting unlawful or unjust confinement are complicated and difficult to take effective advantage of, especially without guidance from seasoned legal counsel.
If you want to help your loved one defend their rights in this kind of situation, you should retain a legal professional who has been in the service themselves and understands what you are going through. Help from our Honolulu-based pre-trial confinement lawyer could make all the difference in your situation.