How military pre-trial confinement is implemented

Civilians who commit a crime are often held in jail as they await trial. A service member found committing a serious offense may be sent to pre-trial confinement, a type of physical restraint without bail. However, this does not happen in all cases and is considered an extreme measure.

Service members in pre-trial confinement have different rights from civilians. Nevertheless, they have the same fourth amendment rights and cannot be sent to pre-trial detention unless:

• The crime warrants a court-martial
• The member may flee or continue criminal activity
• Other restrictions are not enough

Even while awaiting trial in detention, the service member may continue to receive their pay and allowances.

How does pretrial confinement happen?

Accused service members will be turned over to a commanding officer, who decides on the type of confinement. Members are not typically as fully restricted as civilians but may only be restricted to specific areas or activities.

Types of pretrial restraint

1. Conditions on liberty – The accused will be prohibited from doing specific activities, such as going to work.
2. Restriction in lieu of arrest – The accused is not jailed, but will have to remain in secure areas such as the base, their post, or quarters. Sometimes, the service member can continue to do their duties if they stay within the site.
3. Arrest – Service members may lose their duties, be transferred, or be ordered to remain in a particular area when arrested.
4. Confinement – Service members who receive this order may be physically restrained to military prison, also known as the brig or stockade.

Decisions on the form of restraint are subject to several reviews, which the commanding officer must complete within 48 hours. Service members in question may request another review after 72 hours to determine whether confinement is still necessary.

Pretrial confinement must always be administered in accordance with the law and military regulations to maintain fairness. When service members’ rights are violated, such as when they are wrongfully arrested or subjected to inhumane conditions, a military attorney may step in to defend their rights.