Pretrial confinement is physical restraint while awaiting trial or a hearing.
While the military has different rights than the civilian world, the same fourth amendment rights are given to military members. A member cannot be sent to pretrial confinement unless there is a reasonable belief that:
- The offense committed was serious enough to be sent to a court martial;
- The accused is a flight risk;
- The restraint ordered is required by the circumstances.
In an important contrast to the civilian system, an accused servicemember continues to draw full pay and allowances while in pretrial confinement.
The military justice system recognizes four forms of restraint:
- Conditions on liberty - Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. This is usually imposed by a commanding officer, and is usually short lived and temporary. An example would be preventing some sailors from going ashore while visiting a port if they were involved in a fight while in port the previous day. A commanding officer may restrict their liberty - or time off the ship - while they are visiting that port to prevent further violence. Once the ship departs, their liberty is restored.
- Restriction in lieu of arrest. This is an order directing the person to remain within specified limits, such as a ship, barracks or installation, however it does allow a service member to perform their assigned duties during the normal workday. Often the person is not allowed to leave the command or other secured area for a set amount of time. This can be done by confiscating identification or notifying a sentry of the person's situation.
- Arrest. Arrest is a valid order specifying that a person must remain within specified limits, such as shipboard or command spaces. The arrested person may have certain duties, such as handling weapons, commanding others, etc. taken away. The arrested person is usually sent to another location and given menial duties such as painting or policing an area.
- Confinement. Pretrial confinement is physical restraint depriving a person of freedom pending disposition of offenses. This usually involves sending someone to a brig, or placing them in a secured area under guard.
Officers may only be placed into pretrial confinement by their commanding officer.
A commanding officer may delegate their authority to impose pretrial confinement on enlisted persons to a non-commissioned officer. Enlisted persons may also be placed into pretrial confinement by any commissioned officer.
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