Locking Down Pretrial Confinement Review: An Argument for Realigning RCM 305 With the Constitution

• Author: Major Brian P. Gavula
• Pages: 02

MILITARY LAW REVIEW

Volume 202 Winter 2009

LOCKING DOWN PRETRIAL CONFINEMENT REVIEW: AN ARGUMENT FOR REALIGNING RCM 305 WITH THE

CONSTITUTION

MAJOR BRIAN P. GAVULA*

Whatever procedure [may be adopted], it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.1

1. Introduction

   It is 1700 on a Friday. After a rough week in the courtroom, Captain (CPT) Hack, a trial counsel at Fort Grillem, is getting ready to head home for a relaxing weekend when his office phone rings. On the other end is one of his company commanders.

   "Hey, buddy. I'm glad I caught you," barks the commander. "My favorite Soldier is at it again. Ever since I read him his summary court-martial charges for the marijuana use, he's been a real "pain in the neck."2 He's always late to formation and just sits around while the rest of the Soldiers are working. The other day, the first sergeant caught him hanging out at the post exchange when he was supposed to be in the motor pool helping to pack up our equipment. And just this afternoon, his squad leader overheard him saying that he planned to get high this weekend, since he's getting court-martialed anyway. We're trying to get ready for a deployment, and I don't have time to deal with this nonsense! Can you just get this guy out of our hair?"

   Sensing the exasperation in the commander's voice, CPT Hack quickly suggests that the commander put the Soldier in pretrial confinement to keep him from causing problems in his unit and from getting into any more trouble prior to his summary court-martial. After assuring the company commander that he will have his paralegal start on the paperwork immediately, CPT Hack slumps back into his chair and wonders whether he gave the right advice. Although one of his fellow trial counsel is constantly bragging about how his brigade puts Soldiers in jail as a general rule whenever they prefer court-martial charges, CPT Hack has never used pretrial confinement in his short time as a trial counsel and is not sure if it is appropriate in this case. He opens his Manual for Courts-Martial (MCM) to Rule for Courts-Martial (RCM) 305 to review the requirements for ordering a Soldier into pretrial confinement.

   The standard specified in the MCM is probable cause, which is satisfied by a finding that there are 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.3

   The person ordering confinement should ensure that these grounds exist before making his decision.4 In addition, within seventy-two hours, the commander must document the grounds for his determination in a written memorandum, along with the reasons for continued pretrial confinement.5 Within forty-eight hours of the initiation of confinement, a "neutral and detached officer" must review the initial confinement decision in accordance with RCM 305(i)(1) to determine whether probable cause indeed exists.6 Provided that the commander is neutral and detached and completes his 72-hour review within forty-eight hours, he may satisfy the 48-hour review required by RCM 305(i)(1) with his memorandum.7 Moreover, the rules do not prohibit the 48-hour review and the 72-hour commander's review from occurring contemporaneously with ordering the accused into confinement.8 Finally, RCM 305(i)(2) requires the review of "the probable cause determination and necessity for continued pretrial confinement" within seven days by a "neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned."9 For the Army, Army Regulation (AR) 27-10 requires that the 7-day review be conducted by a judge advocate appointed as a military magistrate.10

   Having refreshed his understanding of the requirements for the imposition and review of pretrial confinement, CPT Hack decides that he will save time by drafting the 72-hour memorandum for the company commander's signature so that he does not need to explain the legal standards to the commander in detail. In analyzing the elements of the probable cause determination, CPT Hack again ponders whether

   confinement in this case meets the legal standard, but he believes that he can at least make a colorable argument. After all, CPT Hack reasons, the accused is already charged with an offense, his perpetual lateness to formation and absence from his place of duty make it foreseeable that he will not appear at trial, and the accused's statement that he plans to use marijuana again certainly shows that he intends to engage in serious criminal misconduct.11 Upon completing the 72-hour memorandum, CPT Hack instructs his paralegal to take it, along with the confinement order and other required documents,12 to the company commander for signature.

   Realizing the utility of conducting the 48-hour "neutral and detached" review immediately, so as to avoid having to do it over the weekend, CPT Hack also prepares a succinct memorandum stating that there is probable cause that pretrial confinement should continue. He then considers who should serve as the "neutral and detached officer" for the 48-hour review. Although he remembers his chief of military justice telling him it is a good practice to arrange for a part-time military magistrate to conduct the 7-day review within forty-eight hours to satisfy the requirements of both RCM 305(i)(1) and RCM 305(i)(2),13 CPT

   Hack is afraid that the magistrate will determine that the legal requirements for pretrial confinement have not been met in this case. He believes that the battalion commander might ordinarily be a logical choice to conduct the 48-hour review of a company commander's confinement decision. However, because the battalion commander has already referred charges against this Soldier to a summary court-martial and he therefore may not be sufficiently "neutral and detached," CPT Hack decides instead to seek out the battalion executive officer.

   "What do we need to do with this guy, Judge?" asks the battalion executive officer after CPT Hack briefed him on the situation.

   "He's a dirtbag, sir," replies CPT Hack. "The company commander is signing the confinement order as we speak. He just needs you to sign a memo saying you agree with his decision. There's a chance that the military magistrate will kick him out of jail, but that doesn't have to happen for seven days. At least he'll be out of the command's hair until then."

   With that, the battalion executive officer signed the 48-hour review memorandum, and the accused's unit escorted him to a local confinement facility. The accused remained there for seven days until the military magistrate determined that pretrial confinement was not warranted and ordered his immediate release in accordance with RCM 305(i)(2)(C).14

   The preceding scenario should be troubling, not only because of the many intentional and unintentional abuses of the pretrial confinement procedures,15 but also because it is representative of tactics that are all

   too common in today's military justice practice. This potential for abuse is important because pretrial confinement is the most drastic form of restraint that can be imposed on an accused prior to trial. Beyond depriving the accused of his liberty, it interferes with his performance of duty "and may greatly complicate [his] defense by making more difficult the attorney-client relationship."16 Therefore, "unless confinement prior to trial is compelled by a legitimate and pressing social need sufficient to overwhelm the individual's right to freedom . . . restrictions unnecessary to meet that need are in the nature of intolerable, unlawful punishment."17

   Certainly, the military's status as a "specialized society separate from civilian society"18 necessitates considerations such as military discipline and national security19 in addition to those factors customarily used in state and federal criminal procedure in determining whether pretrial confinement is appropriate.20 But it is precisely because of the expansive bases on which a commander can justify placing an accused servicemember in pretrial confinement21 as well as the absence of bail in

   the military system22 that it is so vital that the legal review of the pretrial confinement decision be meaningful, in terms of both its timeliness and its reliability. Indeed, promptness and reliability are central to the Supreme Court's concept of the constitutionally-required judicial review of pretrial confinement.23

   As the Supreme Court has delineated the constitutional limits of pretrial confinement over the years, however, the military has imperfectly implemented the Court's mandates.24 As a result, the current version of RCM 305 establishes a pretrial confinement framework that is prone to systematic abuse and does not provide a meaningful, reliable judicial review in a timely manner to protect the basic rights of servicemembers. In particular, because RCM 305 allows for the review of pretrial confinement by non-legally-trained officers who may neither understand the nature of the probable cause determination nor be truly neutral and detached, the current system is inherently unreliable and insufficiently judicial. In order for military pretrial confinement procedures to be in compliance with the Constitution, RCM 305 must be amended to require review of pretrial confinement by a neutral and detached judge advocate magistrate within forty-eight hours.

   In building the case for realigning RCM 305 with the Constitution, Part II of this article first explains the Supreme Court's concept of the...