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Ask the Lawyer: Pretrial confinement is a legal punishment

Whenever a question about unlawful command influence crops up among service members facing court-martial, it often leads to a discussion about pretrial punishment and what types of punishment are allowed.

Article 13 of the Uniform Code of Military Justice provides that the accused may not be punished before trial but may be placed in pretrial confinement if he is considered a flight risk, poses a serious threat to the community or is likely to engage in further misconduct.

Unlike civilians, military members are not entitled to bail. But in lieu of confinement, they may be lawfully restricted to the military installation or have conditions placed on their actions, such as not communicating with a victim or witnesses.

Depending on the charges and the facts of the case, it’s not unusual for a service member facing a court-martial to continue to perform his duties and collect full pay and most benefits. It’s common to lose most privileges, though, such as passes and driving privileges.

There is such a thing as unlawful pretrial punishment. For example, ordering a formation and then having the formation about-face as the accused soldier exits the company area could be deemed humiliation and an unlawful pretrial punishment.

Actions, statements or mandates from the command that suggest fellow service members should not associate with or aid the accused — or that the accused is already guilty — likely will lead to a finding of illegal pretrial punishment. I’ve even seen soldiers ordered to wear signs that say, “I’m an idiot for drinking and driving.” That is clearly unlawful pretrial punishment.

The remedy for unlawful pretrial punishment can be a day-for-day credit on sentencing. For example, for each day a service member was unlawfully restricted to the barracks, one day would be taken off his sentence. Remedies for other types of unlawful pretrial punishment are generally left to the discretion of the military judge.

If you believe you have received unlawful pretrial punishment, I recommend talking with an experienced military criminal defense attorney to explore your options.

Remember that you’re still entitled to rights under the UCMJ when facing a military criminal charge.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.