Note: This is the first of what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to

Pretrial confinement prior to trial by court-martial is permitted only when:

(1) An offense triable by court-martial has been committed;
(2) The person confined committed it; and
(3) Confinement is required by the circumstances.

RCM 305(d). Then, once a person is confined, continued pretrial confinement is permitted only when a preponderance of the evidence proves 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.

RCM 305(h)(2)(B). See also RCM 305(i)(2)(A).

Notably absent from these rules is any explicit consideration of the seriousness of the allegations against the accused

A recent article by Major Ryan W. Leary, U.S. Army, published in the Military Law Review, provides a powerful argument for changing these rules. Major Leary argues that “the military justice system should presume, for certain serious offenses, that absent pre-trial confinement an accused will either flee or harm members of the surrounding community.” Major Ryan W. Leary, Serious Offense: Considering the Severity of the Charged Offense When Applying the Military’s Pre-Trial Confinement Rules, 221 Mil. L. Rev. 131, 133 (Fall 2014) (available here).

Using the interrupted court-martial of one Sergeant Evenson – that ended when the unconfined accused absconded and was killed in a confrontation with authorities – Major Leary provides an excellent primer on the history of the current rules for pretrial confinement. Then, after defining the issue as “how to change the RCM to handle cases where an accused is facing serious charges and severe punishment,” 221 Mil. L. Rev. at 143, Major Leary notes that in the federal system the Bail Reform Act:

creates a rebuttable presumption that there is no set of conditions that will assure the presence of a defendant at trial and protect the safety of the community in the case of a defendant accused of certain crimes (e.g., certain drug offenses, terrorism, human trafficking, and crimes involving a minor victim).

Id. at 144. See also 18 U.S.C. § 3142(e)(3). Major Leary proposes applying such a rebuttable presumption to the military (without identifying any specific offenses that would qualify):

Applying the BA’s rebuttable presumption to the pre-trial confinement system in the military is a feasible solution to prevent the issue that presented itself in SGT Evenson’s case—the failure to timely address the flight risk associated with the serious nature of the charged crimes and a potential life sentence facing an accused. The rebuttable presumption meets constitutional muster and can practically be applied to the military system. Therefore, it is worth consideration as a means of mitigating the pre-trial risk of flight or additional misconduct inherent in cases like SGT Evenson’s.

221 Mil. L. Rev. at 151.

I’m not sure if I agree that such a rebuttable presumption is a good idea in the military justice system, but I think I could be convinced. One thing that concerns me is the fact that pretrial confinement is all-or-nothing, due to the lack of bail. As Chief Judge Sullivan wrote two decades ago:

The Courtney decision [Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976)], for instance, assures the pretrial release of all except those whose confinement is absolutely necessary and, in this manner, seeks to minimize the prejudice to military accused from the absence of any opportunity for bail, an opportunity that is constitutionally guaranteed to civilian criminal defendants under the Eighth Amendment.

United States v. Kossman, 38 M.J. 258, 265-66 (C.M.A. 1993) (Sullivan, C.J. dissenting).

However, Major Leary’s article is well-written and the proposal deserves serious consideration.

10 Responses to “Scholarship Saturday: Reforming the pretrial confinement system”

  1. Mm says:

    Where do we get the resources to confine all these soldiers facing trial? Most posts contract with civilian facilities and it is a huge manpower drain on the unit to move the soldier back and forth.  Great idea in theory. 

  2. Brian lc says:

    Yeah!  Looking forward to tjis every Saturday.  
    The resource issue doesn’t concern me because the command would still have to choose confinement. That is, I assume the rebatable presumption would apply to the Reviewing officer’s decision on whether the accused was kept in confinement, not that the commander would assume confinement (although, certainly one would influence the other).
    its always interesting to remember that MSG Hennis drove himself to his capital murder trial very day (during the findins portion at least)

  3. Charlie Gittins says:

    The military already over-uses PTC.  In many cases, PTC is used because the accused is a pain in the butt to deal with.  Not what PTC was meant to solve.

  4. Maj Rubber Stamp, IRO says:

    Hold on–Isn’t a presumption of continued confinement already the rule?  

  5. stewie says:

    Feels like a solution in search of a problem. I get the cited situation, but I would have to see evidence that such a situation or similar situations were frequent enough to justify changing the rules.

  6. Joseph Wilkinson says:

    Zachary – I strongly agree with Brian LC and I do hope you’ll keep the series up.
    Charlie – Agree, but that wouldn’t affect this proposal; at least in my experience, the overuse occurs on Soldiers with a string of pain-in-the-butt drug possession/disrespect/failure to report offenses rather than the top-level crimes the article talks about.  
    Mm – his proposal is only for certain serious crimes, not “all those Soldiers facing trial.”  But that leads to why this is such a bad idea. 
    The “presumption of PTC” is supposed to apply to crimes that carry a life sentence (or at least he mentions “facing a potential life sentence” as a factor that makes a person likely to flee).  That includes rape.  Not just violent rape…the kind where there’s signs of an attack, blood and bruising, etc….but the other kind, the “I was drunk so it’s rape/My boyfriend caught me cheating so it’s rape/I want to ditch my husband so it’s rape” etc.  Most of those quite rightly do not go to PTC.  (Most of them shouldn’t go to trial, either, but that is a different story.)  
    We are already giving way too much power to rape accusers — more recently, the power to keep more evidence away from the defense by not testifying at 32.  The power to “put the guy in jail right now without a trial”…would be a terrible addition, an extra encouragement to vindictive accusers.   And make no mistake: if MAJ Leary’s proposal were put into effect, there’d be a huge push to apply it to all rape accusations.  (“Why, it’s the most terrible act a man can commit!…Are you saying it’s less serious than drug trafficking?…”) 
    The author lists two possible counterarguments to his proposal but I think he is missing a third: that in the modern military, commanders exercise pretty effective control over their servicemembers’ movements, so that servicemembers do not “disappear” as readily as they could in Winthrop’s day.  That goes double for deployed situations — which the article does not address — where there is nowhere to flee.  Also, servicemembers themselves are “pre-screened” for self control…I mean, the worst cases never make it in, or they get chaptered out early…suggesting that the risk of flight is just not the same as in the civilian context.  (This is also a big change from Winthrop’s day, when, between wars at least, enlisting was for guys who couldn’t get other work.)
    Also, if the “nature of the offense” is enough to suggest that a person is likely to flee or do harm to the community…that provides extra power for social workers or other indoctrinated “experts,” who will be glad to come in and suggest that sex offenders reoffend all the time…ensuring that every. last. one. must be a PTC case.  Most of them quite needless. 
    And finally, as Stewie notes, the article presents no evidence that this really is a prevalent problem in the military…only Evenson’s case.  I did once have a “flight” case – but the person was fleeing PTC rather than his trial (he escaped his escorts), so it’s at least arguable that more PTC would lead to more flights (because it would give the servicemembers something immediate to flee from).  But that’s only speculation.  
    In any case, it feels mighty weird to start locking up all the rape/molesting accused before trial on the basis that they’re “likely to flee”…if experience tells us that they are not at all likely to flee.

  7. Jolly Roger says:

    CJ Sullivan may have been right at the time, but civilians don’t have a constitutional right to bail. US v. Salerno, 481 US 739 (1987).

  8. Zachary D Spilman says:

    Well, I think Salerno is more nuanced than that. Salerno addressed two issues: Due process and the excessive bail clause. 

    For the due process challenge, the Court noted that the denial of bail is based on a finding of dangerousness:

    While the Government’s general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society’s interest in crime prevention is at its greatest.

    481 U.S. at 750 (emphasis added). Dangerousness is already a factor in RCM 305(d) (“serious criminal misconduct”). 

    For the excessive bail clause, the Court concluded:

    Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.

    481 U.S. at 754-755 (citation omitted) (emphasis added). Considering this, I suspect the Evenson case is one where bail would have been required. 

    Moreover, as I wrote above, pretrial confinement is all-or-nothing; in the military there is no opportunity whatsoever for bail.

  9. ExTC says:

     I don’t know about the other services, but the USCG and Navy rarely place people into PTC.  It is too much of a pain to deal with and TCs, and particularly SJAs, are paranoid of speedy trial.  Which means that the very limited number of PTC are people who truly earned it or, as Charlie says, pain in the butts that are being warehoused until their separation in lieu of trial.  The number of PTC cases has dropped pretty steadily over time.  As for RCM 305 not addressing the seriousness of the offense, a glaring mistake, in my experience IRO officers always take that into account.  There is a difference between the brutal assault and stalking and the two month UA and IRO officers generally ignore DC arguments about not considering the gravity of the offense. 

  10. John O'Connor says:

    The seriousness of the offense is surely relevant to likelihood of flight, so IROs, in my view, a4re right in rejecting arguments that seriousness of the offense is an irrelevant consideration.