PRETRIAL CONFINEMENT IN THE MILITARY
The military does not have prisons or jails. Rather it has “brigs” for the Navy and Marine Corps and “stockades” or “disciplinary barracks” in the Army and Air Force. The most notorious military confinement facility is the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. In recent years, the military has consolidated many of its stockades and brigs, making them regional confinement facilities. For example, Naval Brig Bangor closed in 2013, and the Navy in the Pacific Northwest now houses prisoners at the Army’s regional confinement facility located at Fort Lewis. The major confinement facilities now include the USDB, Naval Consolidated Brig, Charleston, SC and Naval Consolidated Brig, Miramar, CA.
I frequently represent Sailors and Marines ordered into confinement to the Naval Brig on-board NAS Jacksonville, Florida, which is the only pretrial confinement facility in the Southeast.
What is a military confinement facility like?
A military confinement facility is often referred to a bootcamp on steroids. Similar to a civilian prison, there is no freedom and the prisoners are kept under guard and behind bars. However, military courtesies, respect, and discipline permeate the prisoner population since all of the prisoners have enlisted in the military and have received some type of military training. There is also very little overcrowding in the military facilities. Finally, in most facilities, the prisoners continue to wear their uniforms.
Who puts a military member in confinement?
There are two types of prisoners in military confinement facilities. Post-trial prisoners are those that have been to court and given a sentence of confinement for a specified period of time. Post-trial prisoners are placed into confinement as a result of a sentence.
Pretrial prisoners are those Sailors, Marines, Coast Guardsmen, Soldiers, or Airmen ordered into confinement pending a court-martial. The process to impose pretrial confinement is found in Rule for Courts-Martial (RCM) 305. Any officer can initially order the pretrial confinement of any enlisted person so long as that person is subject to the UCMJ at the time he or she is ordered into pretrial confinement. Only a commanding officer can order an officer into pretrial confinement.
Confinement is usually ordered through the use of a confinement order, DD Form 2707.
The Standard for Imposing Pretrial Confinement
The military, unlike civilian systems, does not impose pretrial confinement when charged with a crime. The normal rule is that an accused pending charges should ordinarily continue the performance
of normal duties within the accused’s organization while awaiting trial.
Rather, the President, as Commander In Chief, has set out strict rules governing the imposition of pretrial confinement in RCM 305.
Importantly, confinement can only be ordered if probable cause supports:
- That an offense trial by court-martial has been committed;
- That the prisoner committed it;
- That confinement is necessary because it is foreseeable that A) the prisoner will not appear at trial (flight risk) or B) the prisoner will engage in serious criminal misconduct if not placed in confinement; and
- Less severe forms of restraint, such as restriction to base limits, are inadequate.
Most litigation regarding pretrial confinement relates to the “foreseeable” requirement and what exactly is “serious criminal misconduct.”
Serious criminal misconduct: “includes intimidation of witnesses or other obstruction of justice, seriously injuring others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command….”
Review and Release From Pretrial Confinement
There are three opportunities to seek release from pretrial confinement, and it’s important that the prisoner has a skilled attorney working diligently to secure his or her release.
1. The Commander’s Review
Within 72 hours, the commander of the member who has been ordered into confinement must prepare a written memorandum stating the reasons for continued confinement. This memorandum can included basically any information that the commander believes supports the pretrial confinement of the member.
Commanders are not in the business of finding exculpatory and mitigating evidence for the prisoner. They take the information provided to them based on initial reports of misconduct and cut and paste it into the memorandum, usually without any critical analysis as to the credibility of the witnesses or the weight of the evidence.
2. The Initial Review Officer (IRO) Hearing / 7 Day Review of Pretrial Confinement
Within 7 days of the imposition of confinement, the prisoner is entitled to a quasi-judicial hearing to review the probable cause determination and necessity for continued confinement. The prisoner and prisoner’s lawyer are allowed to appear before the “neutral and detached” review officer and the command will normally send a representatives, sometimes a lawyer (JAG), to argue for continued confinement. The hearings can take place remotely via VTC or similar means. The review officer may be a lawyer, although there is no requirement that the officer be a lawyer.
The rules of evidence do not generally apply at the hearing, and the review officer is free to consider written statements, hearsay, and investigative reports. The prisoner is free to make a case for release from confinement.
The review officer must issue a written memorandum concluding whether or not confinement is warranted and should be continued.
3. The Military Judge
A military judge may release a prisoner from confinement upon motion. A prisoner only gets in front of a military judge once he or she is charged and the case is sent for trial by court-martial (called referral). It is important to note that a military member may only be placed in pretrial confinement if a court-martial will be pursued will be the commander. While there are some ways to avoid court-martial if placed in pretrial confinement, including an intense defense investigation to obtain and present exculpatory evidence and a request to separate in lieu of trial (SILT or OTHIL), most prisoner’s cases end up at court-martial.
The Importance of Having the Right Lawyer.
Most defense service offices will initially assign only a lawyer for the purposes of the review hearing; that lawyer is usually not the lawyer who will represent the prisoner at the court-martial and is commonly a junior JAG who is told the day before the hearing to go over and meet with the prisoner. Does that sound like the makings of a good case for release or an intense defense at court-martial?
A civilian lawyer like Patrick Korody can be hired to handle the confinement review hearing and the court-martial on the first day of confinement, which often provides sufficient time to investigate the allegations and prepare a case for the review officer demonstrating release is appropriate. It is common that exculpatory evidence is lost without a prompt defense investigation and witnesses change stories when interviewed by law enforcement or command authorities. At Korody Law, we say your defense starts the day we are retained because it truly does – we locate and interview witnesses and preserve favorable evidence for use at the confinement review hearing and court-martial.
Patrick Korody is a former Navy JAG who was certified by the Judge Advocate General of the Navy as a Specialist in Military Justice Litigation. He offers a free case evaluation and can be reached at 904.383.7261. His offices are conveniently located in Jacksonville, FL.