What Pretrial Confinement and Restraint Options Exist in the Military Justice System?
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Rule for Courts-Martial 304 recognizes four forms of pretrial restraint: conditions on liberty, restriction in lieu of arrest, arrest, and confinement. Any form requires probable cause that an offense was committed, that the person committed it, and that the restraint “is required by the circumstances.” Pretrial confinement has stricter requirements and a fixed review schedule under R.C.M. 305: a commander’s decision within 72 hours, a probable cause review within 48 hours, and a 7-day review by a neutral officer. Article 13 forbids punishing a person held for trial.
The four forms of restraint
| Form | What it is (R.C.M. 304(a)) | Duties |
|---|---|---|
| Conditions on liberty | Orders "directing a person to do or refrain from doing specified acts", such as reporting periodically, staying away from a place, or not associating with specified persons | No duty limit stated in the definition |
| Restriction in lieu of arrest | Orders "directing the person to remain within specified limits" | Restricted person "shall, unless otherwise directed, perform full military duties" |
| Arrest | An order "not imposed as punishment, directing the person to remain within specified limits" | Person in arrest "may not be required to perform full military duties such as commanding or supervising personnel, serving as guard, or bearing arms", but may do ordinary cleaning, policing, routine training and duties |
| Confinement | Pretrial confinement is "physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses" | Not applicable |
The Discussion to R.C.M. 304 adds that conditions on liberty “must not hinder pretrial preparation,” that the actual nature of the restraint, not its label, decides whether it is arrest or restriction, and that breaching arrest, restriction, or conditions on liberty is itself an offense.
Speedy trial. Restriction, arrest, and confinement (R.C.M. 304(a)(2)-(4)) start the 120-day speedy trial clock of R.C.M. 707; conditions on liberty alone do not. See how speedy trial rights apply in the military.
Who may order restraint
- Enlisted members: any commissioned officer; a commanding officer may delegate the authority to warrant, petty, and noncommissioned officers for enlisted members of the command (R.C.M. 304(b)(2)-(3)).
- Officers and civilians: only a commanding officer to whose authority the person is subject; this authority “may not be delegated” (R.C.M. 304(b)(1), (3)).
The standard for any restraint
“No person may be ordered into restraint before trial except for probable cause”, meaning a reasonable belief that an offense triable by court-martial was committed, that the person committed it, and that the restraint ordered “is required by the circumstances” (R.C.M. 304(c)). The Discussion says restraint “should not be more rigorous than the circumstances require” and “is not required in every case.” The person must be told the nature of the offense on which the restraint is based (R.C.M. 304(e)).
Pretrial confinement: the stricter test
To continue confinement, the commander must believe, on probable cause, that (R.C.M. 305(i)(2)(B)):
- an offense triable by court-martial was committed;
- the confinee committed it;
- confinement is necessary because it is foreseeable that the confinee will not appear at trial or a pretrial or preliminary hearing, or will engage in serious criminal misconduct; and
- less severe forms of restraint are inadequate.
“Serious criminal misconduct” includes intimidating witnesses or other obstruction of justice, serious injury of others, and offenses posing a serious threat to the community, to the command’s effectiveness, morale, discipline, readiness, or safety, or to national security. The Discussion lists factors such as the nature of the offense, the weight of the evidence, ties to the locale, character, service record, prior appearance or flight, and the likelihood of further serious misconduct, and states: “A person should not be confined as a mere matter of convenience or expedience.” The person who first orders confinement need not make a detailed necessity analysis on the spot (Discussion to R.C.M. 305(d)).
Rights on confinement
A confinee must be told promptly of the offenses, the right to remain silent, the right to retain civilian counsel at no expense to the United States and to request military counsel, and how confinement will be reviewed (R.C.M. 305(e)). If requested, military counsel must be provided before the 7-day review or within 72 hours of the request, whichever comes first (R.C.M. 305(g)). If the alleged offense is a covered offense, whoever orders confinement or release must immediately notify a special trial counsel (R.C.M. 305(f)).
The review schedule
| Deadline | What happens | Rule |
|---|---|---|
| 24 hours | If the confinee's commander did not order confinement, the officer receiving the confinee reports to the commander | R.C.M. 305(i)(1) |
| 48 hours | A neutral and detached officer reviews probable cause to continue confinement | R.C.M. 305(j)(1) |
| 72 hours | The commander decides whether confinement will continue and, if so, writes a memorandum of reasons | R.C.M. 305(i)(2)(A), (C) |
| 7 days (extendable to 10 for good cause) | A neutral and detached officer reviews probable cause and the necessity of continued confinement | R.C.M. 305(j)(2) |
| After referral, or in a pre-referral proceeding under R.C.M. 309 | The military judge may direct release | R.C.M. 305(h) as amended by EO 14130 |
A neutral and detached commander acting within 48 hours can satisfy both the 48-hour and 72-hour requirements (R.C.M. 305(i)(2)(A)).
Who can order release. Under R.C.M. 305(h) as rewritten by Executive Order 14130 (December 20, 2024), any commander of the confinee, including the immediate or higher commander and the commander of the installation where the confinement facility is located, or an officer appointed to conduct a pretrial confinement review, may direct release; a military judge may direct release once the charges are referred or as part of a pre-referral proceeding conducted under R.C.M. 309.
The 7-day review. The reviewing officer considers the commander’s memorandum and other written matters, including any from the confinee; the confinee and counsel may appear and make a statement if practicable. The Military Rules of Evidence do not apply except the privilege rules and M.R.E. 302 and 305. The requirements for confinement “must be proved by a preponderance of the evidence.” A victim has the right to notice, to confer, and to be reasonably heard, including through counsel, in line with the statutory victims’ rights under Article 6b. The officer either approves continued confinement or orders immediate release (R.C.M. 305(j)(2)).
After release. A person whose release has been directed by an authorized official may not be confined again before trial “except upon discovery, after the order of release, of evidence or of misconduct” that meets the criteria for confinement (R.C.M. 305(m)).
Article 13: no punishment before trial
Article 13 provides: “No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.” R.C.M. 304(f) adds that prisoners held for trial “shall not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for post-trial prisoners.”
Credit for confinement
For noncompliance with the counsel, commander-action, and review requirements, the remedy is “an administrative credit against the sentence adjudged” at one day for each day of confinement served as a result, and the military judge “may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.” This credit applies “in addition to any other credit to which the accused may be entitled as a result of pretrial confinement served”, first against confinement and then, in order, against hard labor without confinement, restriction, fine, and forfeiture of pay (R.C.M. 305(l)).
Sources
- 10 U.S.C. § 813, Article 13, Punishment prohibited before trial (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 304, 305, 707
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex amendment to R.C.M. 305(h)
This article is general information about military law, not legal advice for any individual case.