Rule for Courts-Martial 305(h)(2)(B) authorizes pretrial confinement when an accused’s commander has probable cause, or reasonable grounds to believe, that:
(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) the prisoner will not appear at trial, pretrial hearing, or investigation, or
(b) the prisoner will engage in serious criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.
“Serious criminal misconduct” includes offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command. Id. The commanding officer’s decisions to initiate or to continue pretrial confinement do not go unchecked. Within 7 days of the imposition of confinement, a neutral and detached officer reviews the commanding officer’s probable cause determination and the necessity for continued pretrial confinement. R.C.M. 305(i)(2).
At the IRO hearing, the reasons for confinement must be proved by a preponderance of the evidence. R.C.M. 305(i)(2)(A)(iii). If the IRO finds the evidence does not support the initial decision to place an accused into pretrial confinement, or that the evidence does not support continued pre- trial confinement, the accused is ordered released. If the IRO finds sufficient evidence to continue pretrial confinement, an accused can seek redress from a military judge once charges are referred. R.C.M. 305(j).
A military judge may order an accused released from pre- trial confinement only if:
(1) the IRO abused his discretion and insufficient information is presented to the military judge justifying continued pretrial confinement; or,
(2) information that was not presented to the IRO establishes that the accused should be released; or,
(3) the rules controlling the initial 48-hour probable cause determination and 7-day review of pretrial confinement were not complied with, and insufficient evidence is presented to the military judge to justify continued pretrial confinement. R.C.M. 305(j)(1)(A)-(C).
Mental condition of accused - Although, an accused's mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement, it must be relevant to the two basic criteria: (1) whether the accused will be present for trial; and, (2) whether the accused is a threat to commit other acts of serious misconduct. Error to impose pretrial confinement based on suicide risk. US v. Doane, 54 M.J. 978 (A.F.F.C.A. 2001)
Neutral and Detached IRO - Officer who consulted with investigators during the latter stages of the investigation about a proposed attempt to purchase marijuana from the accused, who gave them specific advice on the procedure to be followed, and who placed himself at the command post and provided advice to the investigators on the probable cause and various other legal issues pertaining to the operation was disqualified from acting as a hearing officer with respect to the accused's pretrial confinement. . U.S. v. Fals, AFCMR 1978, 6 M.J. 713.
Types of Confinement Credit
Allen: Credit for pretrial confinement (usually includes civilian confinement) - day for day until sentence imposed
Article 13: Pretrial punishment or unduly rigorous conditions
R.C.M. 305 (k): Abuses of discretion in imposing pretrial confinement
Mason: Restriction tantamount to confinement
Pierce: Credit for nonjudicial punishment for the same offense
(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) the prisoner will not appear at trial, pretrial hearing, or investigation, or
(b) the prisoner will engage in serious criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.
“Serious criminal misconduct” includes offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command. Id. The commanding officer’s decisions to initiate or to continue pretrial confinement do not go unchecked. Within 7 days of the imposition of confinement, a neutral and detached officer reviews the commanding officer’s probable cause determination and the necessity for continued pretrial confinement. R.C.M. 305(i)(2).
At the IRO hearing, the reasons for confinement must be proved by a preponderance of the evidence. R.C.M. 305(i)(2)(A)(iii). If the IRO finds the evidence does not support the initial decision to place an accused into pretrial confinement, or that the evidence does not support continued pre- trial confinement, the accused is ordered released. If the IRO finds sufficient evidence to continue pretrial confinement, an accused can seek redress from a military judge once charges are referred. R.C.M. 305(j).
A military judge may order an accused released from pre- trial confinement only if:
(1) the IRO abused his discretion and insufficient information is presented to the military judge justifying continued pretrial confinement; or,
(2) information that was not presented to the IRO establishes that the accused should be released; or,
(3) the rules controlling the initial 48-hour probable cause determination and 7-day review of pretrial confinement were not complied with, and insufficient evidence is presented to the military judge to justify continued pretrial confinement. R.C.M. 305(j)(1)(A)-(C).
Mental condition of accused - Although, an accused's mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement, it must be relevant to the two basic criteria: (1) whether the accused will be present for trial; and, (2) whether the accused is a threat to commit other acts of serious misconduct. Error to impose pretrial confinement based on suicide risk. US v. Doane, 54 M.J. 978 (A.F.F.C.A. 2001)
Neutral and Detached IRO - Officer who consulted with investigators during the latter stages of the investigation about a proposed attempt to purchase marijuana from the accused, who gave them specific advice on the procedure to be followed, and who placed himself at the command post and provided advice to the investigators on the probable cause and various other legal issues pertaining to the operation was disqualified from acting as a hearing officer with respect to the accused's pretrial confinement. . U.S. v. Fals, AFCMR 1978, 6 M.J. 713.
Types of Confinement Credit
Allen: Credit for pretrial confinement (usually includes civilian confinement) - day for day until sentence imposed
Article 13: Pretrial punishment or unduly rigorous conditions
R.C.M. 305 (k): Abuses of discretion in imposing pretrial confinement
Mason: Restriction tantamount to confinement
Pierce: Credit for nonjudicial punishment for the same offense
