Pre-trial confinement is available to the military justice system as a tool for ensuring the accused’s appearance at trial and protecting the community, but it is not supposed to be used as punishment before a finding of guilt. The standards governing when confinement is authorized, who must make the initial determination, and how long confinement can continue without formal review are defined by the UCMJ and applicable regulations. A service member who is confined before trial has rights that do not disappear simply because formal proceedings have not yet begun.
The procedural protections that apply during pre-trial confinement include the right to a probable cause determination, the right to a review by a magistrate or other neutral officer, and the right to credit for time served if confinement is ultimately followed by a conviction and sentence. Challenging the basis for pre-trial confinement, or the conditions under which it is being served, requires prompt action and an understanding of the specific regulatory framework that applies to the situation.
The Authority for Pre-Trial Confinement Under the UCMJ
Pre-trial confinement is authorized under Article 9 of the UCMJ, which permits commanding officers to order service members into confinement when there is probable cause to believe the person committed an offense and when certain additional conditions are met. The conditions required to justify pre-trial confinement include a determination that the person is a flight risk, that continued freedom poses a danger to the community, or that the person will interfere with the investigation or administration of justice if not confined.
The initial confinement decision is made by a commanding officer, not by a judicial officer, and it is therefore subject to rapid review by an independent authority. Within 48 hours of confinement, a neutral military magistrate or military judge must be provided an opportunity to review the confinement decision and to order release if the initial confinement was not supported by adequate grounds. This review is not automatic in all branches and circumstances, and the service member or their counsel must ensure that the review process is invoked promptly if the initial confinement is challenged.
The Required Probable Cause Determination and Who Makes It
Before pre-trial confinement can be maintained beyond the initial period following a commander’s order, an independent review must be conducted to determine whether probable cause exists to believe the service member committed an offense and whether continued confinement meets the applicable standards. This review is required within 48 hours of confinement under the framework established by military case law following constitutional requirements.
The person conducting this review must be a neutral and detached officer, either a military magistrate or a military judge, who is not in the same chain of command as the commander who ordered the confinement. A review conducted by the same chain of command that ordered the confinement does not satisfy the independence requirement. Defense counsel who are retained promptly following confinement should immediately verify that the required independent review has been or will be conducted, and should challenge any confinement that was not reviewed by an appropriately independent official within the required timeframe.
How Long Pre-Trial Confinement Can Last Without Review
After the initial 48-hour review, continued pre-trial confinement must be justified on an ongoing basis. The service member cannot be confined indefinitely simply because the initial review determined that confinement was appropriate. As the case progresses toward trial, the continued necessity for confinement should be periodically assessed, and the defense can challenge confinement at any time through an Article 138 complaint, a motion to the military judge, or other available mechanisms.
Extended pre-trial confinement that significantly delays trial can give rise to speedy trial claims under R.C.M. 707, which establishes time limits within which an accused who is in pre-trial confinement must be brought to trial. The government’s failure to comply with these timelines can result in dismissal of the charges, making prompt tracking of the pretrial confinement clock an important defense responsibility from the first day of confinement.
Challenging Confinement Through a Confinement Review Officer
The confinement review officer process provides a mechanism for challenging the basis for pre-trial confinement through a formal administrative proceeding. The review officer examines the grounds for confinement and can recommend release if those grounds are not adequately established. The defense can present evidence and argument at the review hearing, and the review officer’s decision can be appealed through the chain of command or challenged through a motion to the military judge.
Defense counsel who prepare thoroughly for the confinement review hearing treat it with the same seriousness as any other contested proceeding. Evidence that the accused is not a flight risk, is not a danger to the community, and has no intent to obstruct the investigation is presented affirmatively, supported by documentation and witness statements. A release from confinement, in addition to its direct benefit to the accused, demonstrates to the command and to future decision-makers that the government’s case for confinement was not as strong as initially asserted.
Credit for Pre-Trial Confinement Against Any Sentence Imposed
A service member who is convicted following a period of pre-trial confinement is entitled to credit against any period of confinement imposed as part of the sentence. The credit is awarded on a day-for-day basis, and the military judge is required to ensure that the credit is applied to the sentence when it is announced. Defense counsel must track the pre-trial confinement period precisely and must raise any discrepancy between the actual period of confinement and the credit applied at the time of sentencing.
Additional credit beyond the day-for-day calculation is available in cases where the conditions of pre-trial confinement were unduly rigorous or where the confinement was not in compliance with the applicable standards for humane treatment. Defense counsel who identify deficient conditions of confinement should document them contemporaneously and request appropriate additional credit at sentencing. Additional credit is not automatic and must be specifically requested and supported by evidence.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.