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What is pretrial restraint?

On Behalf of | Mar 23, 2023 | Military Law |

The military has a specific process when dealing with criminal offenses. Before a trial, the accused might undergo pretrial restraint while waiting for the court-martial’s determination of charges.

Certain military officers can order pretrial restraint for criminal offenses that will go through trial. These restraints help prevent the accused from committing further misconduct and ensure that they will attend their trial or hearing.

Still, the appropriate type of restraint depends on the charges and the circumstances. There are four types of pretrial restraint:

  • Conditions on liberty: Ordering the accused to avoid specific actions.
  • Pretrial restriction: Written or verbal orders limiting the accused as they perform their regular tasks.
  • Arrest: Written or verbal orders designating limitations on where they can go and their activities. This restraint can also restrict their military duties.
  • Confinement: Confining the accused in a facility and keeping them there while waiting for the pending charges.

Additionally, confinement is only an option if the accused is a flight risk or if they are likely to commit other violations when given a lesser restraint.

Who can impose pretrial restraint?

Only select people can impose pretrial restraint. It depends on the accused’s status:

  • Active enlisted: Any commissioned officer or other officers given authority by the accused’s commanding officer
  • Active officer: The accused’s commanding officer
  • Reserve: Special rules might be relevant, requiring advice from a judge advocate

Additionally, deciding to impose pretrial restraint requires a specific process, including reviews by a commander, neutral officer or military judge. Still, choosing the proper type of restraint depends on the offenses committed and the accused’s potential behavior.