When Does Pre-Trial Confinement Occur?
Pretrial confinement usually happens very early in the case, close in time to the events in question. We have seen situations where crimes happen over a weekend and the command doesn’t take action to place someone in pretrial confinement until the next week. Ordinarily, however, if they don’t decide to place you in pretrial confinement right away, the will not typically do so later unless they find evidence of additional misconduct.
Effectively, the only reason that pre-trial confinement is to be used in a case is if you have reason to believe one of two things is going to happen: either the person who’s going to be thrown in jail won’t show up for their trial (they’ll run, they’ll go AWOL, etc.), or the person will commit additional serious misconduct.
Most often, after a sexual assault allegation or an allegation of criminal wrongdoing is made, the Soldier, Sailor, Marine, Airman, or Guardian never goes into pre-trial confinement because there isn’t evidence that the accused will commit further crimes. But there are certain circumstances where the command does believe one of those things is going to happen, and that’s when they require pre-trial confinement.
Who Makes the Ruling Whether the Accused Service Member Will Face Pre-Trial Confinement?
The initial determination is most often made by the immediate commander, but it can really come from any competent authority. After that, there’s a series of processes that the government has to go through. The most important one is that within seven days of your pre-trial confinement, there will be a hearing before to determine whether your pre-trial confinement is proper.
At that hearing, there will be an impartial officer who’s been appointed (usually by an installation commander, a garrison commander, or somebody in a high level of authority) to decide whether pre-trial confinement is necessary by looking at four main things: whether a crime occurred, whether the person who’s in pre-trial confinement committed the crime, whether confinement is truly necessary (because that person might flee or commit additional crimes), and lastly, whether less severe forms of restraint would be possible or adequate (i.e., restriction to base or conditions on liberty). So, the seven-day review officer, or the pre-trial confinement review officer, as we call them, will look at whether those four factors exist.
Will I Be Told Why I’m Being Held for Pre-Trial Confinement?
You will be advised upon being ordered into pre-trial confinement exactly why such a determination has been made. Though you won’t get a copy of all of the evidence against you, your immediate commander has to tell you exactly why you’re being ordered into pre-trial confinement, and that happens in the order itself, as well as in the process of reviewing your pre-trial confinement. So, you will be advised of your rights, you will be told why you are being held, and then you’ll be placed in pre-trial confinement.
Within 3 days, the commander that ordered someone into pretrial confinement is required to produce a more substantial memorandum laying out the justification for pretrial confinement. You and your attorney will receive a copy of this document. The rational in this memo is generally the same rationale the Government will use at the 7-day hearing.
What Does Credit for Pre-Trial Confinement Mean in a Sexual Offense Case?
If you are placed in pre-trial confinement, you’re technically not yet guilty of anything in the eyes of the law. Your case hasn’t gone to trial, you haven’t been found guilty, so you’re an innocent person until proven guilty. Nevertheless, you’re sitting in jail because there is reason to believe you might run or you might commit additional crime. The military gives you day-for-day credit while you’re placed in pre-trial confinement, meaning if you’re found guilty at court-martial and then given confinement (jail time) as a punishment for your crime, any day you spend in pre-trial confinement is going to be credited against your sentence.
I’ll give you a common example. Let’s say you are accused of using cocaine and placed in pre-trial confinement because the command, for some reason, believes that you’re going to continue to use cocaine if you’re not placed in jail. You sit in jail for 30 days before your case goes to trial, and for those 30 days, you’re just waiting to figure out if you’ll be found guilty or not guilty. You go to trial, where you’re found guilty, and you’re given a sentence of 90 days in jail as a result of your court-martial conviction. You’ve already served 30 days in pre-trial confinement, so that means after court-martial, you only owe 60 more days.
Now, there are circumstances in which that one-for-one calculation can be increased. If the conditions of your confinement are really poor, if you’re treated unfairly, or if you’re punished in any kind of illegal way, that number might go up. It’s for your defense counsel to figure out whether or not you have a reason to ask for the court to increase your credit.
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