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 email@example.com
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.