Pretrial Restraint in the Military

• Author: By Yajar Richard R. Boiler
• Pages: 03

tar u practices more eoiisistmt with these concepts.

I. ISTRODVCTIOS

Restraint prior to trial in the military is baaicall>- a matter for command discretion.' The Critform Code of 31ilitaQ Justice and the Ilanz!ol io? Cosrts-MMai.tia1, rnited States, 1.969 iRerised e&-tion), establish no comprehensive guidelines regarding the placement of personnel subject to military 1 8 ~ in pretrial confinement.Rather. commanders are merely urged to exercise discretion in determining whether pre:rid confinement 13 iw.rranted in each case. In mme instances, commanders are required to obtain the approval of the staff judge advocate prior to confining perrons, or are furnished in regulatory form local guidelmes which are to be employed in determining the necesaity of pretrial confinement.

The purpose of this article is to examine the real and possible effects of pretrial restraint, to review the histxy of restraint prior to trial in both the cirilian and military Setting, to discuss some of

the more recent inncmtions which hare found their w.p into the civilian forum. and to determine nhether these innovations mal- be applied to the milltar?. To a w ~ t the reader in underrtandine the ideas expressed herein. the following assumptions of the author are declared :

(11 Unnarianttd pretrial confinement is detrimental to rhe Inrerest- of both the Goiernment and the accused. (2) >lean. "the, than pretrial conhcement may he employed

(3) Objeztive evaluation, rather than plenary discretion, should be employed 111 determining the appropr:atene*i of prefrmi redtralllt

to deter fl:eht prior to trial.

bail principles to

I? the milltar?. pretrial canfinemenr is iubject to abuse, because it may be ordered on the basis of a mere allegation of wonpdoinp,

, b) the officer exercimg genera! c~urt~martm! d to \+ hieh the accused 13 eurrenflg aiaizned."

leit to re%iew, the Court of Yllitari Appeals has airmned that

OP 1s ieiieivable io, abuse of d~rcretm . :' Dale Y. Unlted Doc S o 69-55 I C 31 A , 27 Feb. 1570). "8 d,pia+cd ~lj

70-2

article 13 piiii~ipdlr concerned hith

II be sufficient to note that the military

JALS 11.

5 1: U.S.C.Y.A 135,3i c 31.8. 189 (186,).

PRETRIAL RESTRAINT

which order is not governed by any definitive regulations or guid-ance. Prior to trial no judicial tribunal has passed upon the guilt or innocence of the accused: although he is presumed innocent, he may be confined for months. Moreover, the time he spends in pretrial confinement is not credited' to the sentence he receires. Of paramount importance, however, is that pretrial confinement, in and of itself, may affect the accused's ability to defend himself properly at trial.

11. EFFECTS OF PRETRIAL RESTRAIST

A. .lfASPOIiFR

During fiscal year 1968 the Amy tried 2,316 persona by general court-martial. The average elapsed time from charges or canfinement to trial ivas 62.2 day8.j Assuming that set-en out of ten persons tried by general court were confined prior to trial, the Army lcst the services of the combat forces of an infantry battalion for a period of six month? as a result of general court-martial pretrial confinement.

B. ECOMOMZC

The costs of detaining an accused have been estimated at be-txreen and E71 a day. At E5 a day, confinement before trial costs the government nearly a half-million dollars each year. Each sol-dier confined prior t3 trial is entitled to his full pay and allo~ances.' Aasuming that each ?oldier is paid $150 a month, the government pays another halfmillion dollars for services which it does not receive.

C. APPELLATE

Although pretrial release i?ould not obviate the problem of

4 Courts are usually advised of the amount of pretrial confinement, if alplficant. and may eonrlder this m determining the sentence. Horever, the? are not compelled to do 80,

6 1968 AkF. REP. UF US.

CaoRT (IF MILITARY APPEIUIS 23.

OH~sarings 0% S. 1557, S. 647. and S 648 Bslais a Suboomni. On Cons~~lulionol

Rzghls and the Suboomni. an Improv.ements ~n Judioial Machi-nery 01 tho Comm on the /udiim,li, 89th Gong., 1st Sess. 197 (1966).

7 Hearings on S. Is57, SUPYO note 6. at 264.

8 Dep't of Defense Military Pay and Allorsnces Entitlementr Xanual,

pa18. 10316(a) (1 Jan. 1067).

speedy trial in the military, it would certainly help in doing SO.^ The problem ia compounded because there are no rehearings on case8 reversed for failure to afford an accused a speedy trial. The result is ineritably a dismissal of charge+ which results in B waste of time and money expended to try the case and take it through the appellate channels.

D. SCBTLE EFFECTS

The subtle effects of pretrial confinement are incapable of strict proof. They involve qilestions of human reaction. Statistics, although furnishme. some authority for the propoaitions involved, would not establish a CBUSBIrelationship between the confinement and the proposed effect thereof.

1. Pleos and Prethol Investigations.

Does lengthy confinement prior to trial have an effect on an accustd'j plea in court. Does the fact that he gets no credit for his pretrial confinement?' make him more amenable to forego B possible defense because of the time it would take to perfect it? Is he more prone to prevail upon his iounael to expedite th? pretrial investigation so that he can begin seriing his sentence? Does the confinement atmosphere, in and of itself, contribute toward a breakdown of an accused's will to contest the charges against him "12

2. Aiipeamnce of the Accused.

An accused tried before a court-martial is entitled to \

5 See genemlly L'mred Stater V. W~lson, 10 U.S C.DI.A. 337, 310, 27 C.M.R 411. 414 (1959). ('[Tlhe period af confinement before trial muit be considered in delerniinrng vhether the case proceeds to tnal with reasonable dispatch.") Under srticle 10, UCMJ, if the secnned is confined. zmrncdialr steps must be tsken to Inform h m of the spffifie wrong of ahleh he is accused and to try him.

IDSse, e.&, United States 7. Lipovrky, 11 U.S.C.Y.A. 510. 88 C.1I.R. 808

(18681.

11 UCMJ art. 57(b). See note 4, ~zpro. 'ZSsr r~,~cralip

Hearings on S. 1357, Bupra note 6, ar 175; R. EVERETT, D~ILITARI JKSTICE

118 (1956)

:

40 (1965).

18 United States Y. Scoler, 14 U.S.C.Y A. 14, 33 C.Dl.R. 226 (1963) ; United COCRTS-YARTIAL. EXITED SrAnJ, 1968 (REVISED EDIIIOVJ. DBTB. 60 [herein-after cited as MCY, 1868 (Rei )I

stater V. m e t , 12 U.S.C.DI.A. 670, SI C.M.R. 256 (1862) ; MA.W*L FOR

11 TXE ARMED

RAVEOM A CRITIQUE OF THE AXERICIA

BAIL SYSTEM

FORCES

OF THE US~TEO

STATES

R G a ~ o ~ a ~ s ,

PRETRIAL RESTRAINT

they are entitled. Dress uniforms may look less than acceptable because they have been inaccessible to the accuaed. One authority has noted that: "The appearance and demeanor of a man who has spent days or weeks in jail refiects his recent idleness, isolation, and ~ X P O C U P ~

to the jailhouse crowd."l+

3, The Etjeetice Assistance of Cozinsel.

Ta what extent an accused in pretrial confinement is denied the effective aS8istance of counsel can only be a matter of supposition. It vould seem to be true beyond cavil that the most effective assist-ance can be rendered when the accused and his coun~el are free to talk over the case and exchange views whenever the need arises. The fact that an accused ia incarcerated many miles from the paint where his counsel is located would seem to derogate from this effectiveness. P,dditionally, there are instances when an accused can be a valuable instrumentality in the pretrial discovery process and can assist in the questioning of a witness prior to trial.15

4. Other Efeets.

To what extent court members are influenced by the presence of armed guards in or out of the courtroom ia incapable of proof.16 Similarly, the effect upon an accused confined prior to trial of the forced association xith convicted persons is a matter for

Assuming that an accused is innocent of any wrongdoing, and we presume BS much, will the experience of spending two or more months in jail tend ta improve his attitude toward the Army or Society in general? 1s it the type of experience

14 Xeoringe on S. 1 ~ 6 7 , supra note 6, at 85-86. Because ai thls tendency,

defense counsel Should make a p~rtieular &art to advise the aecwed sboutthe Importance of a, good appearance, and to insure that he has an oppo~~unIts to prepare himself and his uniform.

Is''[Aln accused held I" pretrml confinement is sewrely handxapped ~n

preparing his defenae." Id. at 2. The Kmth Cirevrt recently ordered a juvenile defendant released from a denention home in order to help prepare his defense. The court WBQ impressed that the whlte lawyers af the defendant. B

black, "rauld . . . have great practical difficulty in mterviewmg and lming up

the mtnearea, and that appellant is the sole person rho can do so." Kinney Y.

Lenon, 7 CR.

L REP.

2164 (9th Cir., 21 Apr. 1970).'Bin United States V. West, 12 U.S.C.P.A. 670, 614, 31 C.hI.R. 256, 260 (1962), the court held that the nnuinal eecurlty pieeautions employed in the trial cmrtraom were an important factor m depriving the aeeuned of m impartla1 trm1.

1- "Premmably, innocent person% can hardly be expected to remain im~er- V~OYB

confined with convicted cr~minals. This could have B p~rtieular17 signil-cant and damaeme impact upon young persona, and might eamly remforc-rather than diminish--any diaporition they have for enmind activity." Hear. inm ov S. 1357, 8irp70 note 6, at 12.

which will better enable him to become a good citizen upon his release from actire duty

111. EVOLUTION OF THE COSCEPT OF PRETRIAL RELEASE

A CIVIL LAK

1. E~,gIn>~d

Durinp the 12th Century, it \TSS uncommon in England to im- Imprisonment \\as costly and an iff, who was content to discharpe by releasing accused persons to the cuatod3- of 1he.r friends. It 1s thoupht, hanever. that had the prisons been more secure perhaps the pretrial release of accused persons would have been curtai1ed.l' Additionall3-, durinp this pe-riod arrest meant imprisonment xdhout benefit of a preliminary hearing. Seriou; iaSer were tried b5- the...