What Are the Differences Between Pretrial Confinement in the Military and Civilian System?
In the civilian world, if you are arrested or if you commit a serious offense like sexual assault, you’ll usually be placed in jail but with the opportunity to post bond and get out of jail until your trial. The idea behind asking you to put up some amount of money (oftentimes thousands of dollars) is to encourage you to show up for your trial in order not to lose that money, have some bounty hunter come find you, and be taken back to the police to sit in jail until your trial. That’s what it looks like in the civilian world.
In the military, we don’t have bond or bail, so there’s no program in which the military arrests someone, puts them in jail, and then lets them post bail. That does not exist. The idea is that the military is a disciplined force with its own systems and structure of discipline, and for the most part, we expect military members to show up on the day of their trial because their command is watching them, their first sergeant is watching them, their supervisors are watching them, the prosecutors are watching them, the defense counsel is watching them, and there’s far less risk of them fleeing before trial.
However, in some cases, pre-trial confinement is sought. It’s a form of physical restraint where the person subject to court-martial charges will sit in jail until their trial is held.
What Are the Different Types of Pre-Trial Confinement in the Military?
There’s really only one type of pre-trial confinement, and that is jail, though there are other types of restrictions that can be imposed on a military member. For instance, someone could be restricted to base or post, to their home and their workplace, or even to a certain number of miles away from the installation. That’s what we call restriction; basically, we’re requiring someone to stay within a certain restricted area until that restriction is lifted.
There can be other conditions on liberty, as well, such as telling someone to refrain from doing something for a period of time. A good example might be telling a person not to go to the fitness center on base or on post for a period of time if the alleged victim in a case is an employee who works at the fitness center. That’s a condition on liberty where you’re told, “Don’t go to the fitness center,” and, “You’re not permitted to do that until a certain time runs.”
Who Can Order Pre-Trial Confinement in a Military Sex Crime Case?
Under Rule for Court-Martial 304, any competent authority (meaning someone with jurisdiction) can order pre-trial confinement. Most often, we see this as the immediate commander of the individual who is going to be placed in confinement. Your immediate commander might say, “I believe that confinement is necessary for some reason,” and they’ll have to spell out that reason out in a specific document and sign an order placing you in pre-trial confinement. Any higher authority, anyone who has control over you, could also make the order.
What Are My Rights During Pre-Trial Confinement or a Restriction to Base?
Your rights during pre-trial confinement are pretty limited. You don’t have many rights while you’re sitting in jail other than the standard rights being given to every human being, namely being treated fairly and with dignity, not being injured, and being taken care of while in jail. Pretrial detainees are kept separate from post-trial inmates for the most part.
In the case of pre-trial confinement, one critical right that you do have is the right to a review of your confinement. If your immediate commander orders you into pre-trial confinement, they also have to undergo a review process for that confinement, and there’s a variety of different procedures that apply. The one that’s probably most important and most common is that a hearing has to be held after pre-trial confinement is ordered. At that hearing, the government has to show a couple of different things to make sure that there’s reason for you to be in pre-trial confinement, even if your commander ordered it. This hearing ensures there’s a proper pretrial confinement order.
