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  • Locked Up: Military Pretrial Confinement Explained

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    The military’s authority to place a service member in pretrial confinement recently received national attention after Marine Lieutenant Colonel Stuart Scheller was placed in the brig following a series of social media posts and videos he made criticizing the American withdrawal from Afghanistan.

    While the Uniform Code of Military Justice (UCMJ) does authorize Commanders to place service members in pretrial confinement, this extraordinary measure can only be taken in specific circumstances and, even then, a service member is entitled to important due process rights.

    MJA has successfully sought the release of service members unlawfully placed in pretrial confinement. If you are under investigation or facing court-martial, it is critical that you have an experienced military justice attorney fighting for you. Contact us today for your free consultation.


    Rule for Courts-Martial (R.C.M.) 305 sets forth the requirements and procedures to order a service member into pretrial confinement.

    According to the rule, any person who is subject to trial by court-martial may be confined if the requirements of R.C.M. 305 are met. No person, however, may be placed in pretrial confinement unless there is probable cause (i.e. a reasonable belief) that:

    • An offense triable by court-martial has been committed;
    • The person confined committed it; and
    • Confinement is required by the circumstances.

    If probable cause exists, an officer can be ordered into pretrial confinement by a commanding officer under whose authority he or she falls. In contrast, enlisted service members may be ordered into pretrial confinement by any commissioned officer.

    A person who directs confinement should consider the nature and circumstances of the offenses charged or suspected, including extenuating circumstances, but is “not required to make a detailed analysis of the necessity for confinement.” For example, the discussion to R.C.M. 305 explains that it may be necessary to confine a person apprehended for a violent crime even if all the details of the offense are not known. Generally, a service member charged only with a summary court-martial level offense should not be ordered into pretrial confinement.


    Service members ordered into pretrial confinement have several important substantive and procedural rights. Upon being placed in confinement, a service member must be promptly informed of:

    • the nature of the offenses for which held;
    • the right to remain silent and that any statement they make may be used against them;
    • the right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and
    • the procedures by which pretrial confinement will be reviewed.

    Upon request, military counsel must be provided to the service member before their 7-day initial review hearing or within 72 hours of such a request being first communicated to military authorities, whichever is first.

    Military counsel may be assigned for the limited purpose of representing the service member only during the pretrial confinement proceedings. A confined service member does not have a right to choose what military counsel represents them.


    There are three notable opportunities for commands to review the imposition of pretrial confinement: the 48-hour review, 72-hour review, and 7-day review.

    Once a service member has been ordered into pretrial confinement, a neutral and detached officer must review the imposition of confinement within 48 hours to determine whether there is probable cause that the service member committed an offense triable by court-martial and that confinement is required by the circumstances.

    Then, within the first 72 hours of confinement, the service member’s commander must either direct their release from confinement or prepare a written memorandum explaining why pretrial confinement is warranted. The service member must be released from pretrial confinement unless the commander believes, upon probable cause, that:

    • an offense triable by court-martial was committed;
    • the prisoner committed the offense;
    • confinement is necessary because it is foreseeable the accused will not appear at future hearings or that he will engage in serious criminal misconduct; and
    • less severe forms of restraint are inadequate.

    “Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of 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, or to the national security of the United States.”

    Finally, within 7 days of the imposition of pretrial confinement, a neutral and detached officer must conduct a hearing to review the probable cause determination and necessity for pretrial confinement. The service member may be represented by counsel and can submit evidence on their behalf at the hearing.

    The 7-day reviewing officer’s conclusions, including their factual findings, must be set forth in a written memorandum. If the 7-day reviewing officer approves continued confinement, the service member can request reconsideration of the decision if they provide “significant information not previously considered.”


    If the reviewing officer determines that continued confinement is necessary and the accused remains confined, the service member may request that the military judge assigned to his/her case review the propriety of the pretrial confinement once the charges are referred to trial.

    According to R.C.M. 305(j), “[t]he military judge shall order an accused’s released from pretrial confinement only if:

    • the reviewing officer’s decision was an abuse of discretion and there is insufficient evidence presented to the military judge to justify continued pretrial confinement;
    • information not presented to the reviewing officer establishes that the service member should be released; or
    • the 48-hour probable cause determination or 7-day review were not complied with and information presented to the military judge does not establish sufficient grounds for continued confinement.

    If the Defense establishes the first or third criteria, then the burden shifts to the government to demonstrate sufficient grounds under R.C.M. 305 to continue pretrial confinement. In determining whether the reviewing officer abused his discretion, the military judge considers only that information which was presented to the reviewing officer for his determinations.

    Factors which should be considered to determine if confinement is warranted are:

    • the nature and circumstances of the offenses charged or suspected, including extenuating circumstances;
    • the weight of the evidence against the accused;
    • the accused’s ties to the locale, including family, off-duty employment, financial resources, and length of residence;
    • the accused’s character and mental condition;
    • the accused’s service record, including any record of previous misconduct;
    • the accused’s record of appearance at or flight from other hearings, trials, and similar proceedings; and
    • the likelihood that the accused can and will commit further serious criminal misconduct if released.

    See R.C.M. 305(h)(2) Discussion.


    R.C.M. 305(k) states that “[t]he remedy for noncompliance with subsections (f), (h), (i), or (j) of this rule shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance.”

    This credit is computed at the rate of 1 day credit for each day of confinement served as a result of noncompliance with the rule. For example, a service member who serves 90 days of pretrial confinement would receive another 90 days of credit, for a total of 180 days of confinement credit to be applied against any future sentence.

    The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.


    MJA has successfully sought the release of service members unlawfully placed in pretrial confinement facing some of the most serious allegations under the UCMJ.

    In one case, MJA represented a service member who was placed in pretrial confinement for allegations of murder, manslaughter, wrongfully discharging a firearm, and violating a lawful order. At arraignment, MJA filed a motion to have the service member released from confinement based on defects in the initial review hearing. The Military Judge found that the Initial Review Officer had abused his discretion by keeping the service member in pretrial confinement and ordered his immediate release. The service member was later awarded administrative confinement credit for the abuse.

    If you are under investigation or facing administrative separation or court-martial, it is critical that you have an experienced military justice attorney fighting on your behalf. Contact us today for your free consultation.

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