Pretrial restraint in the military
When may a person be restrained? (see Pretrial restraint & pretrial confinement in the military)
Pretrial restraint of military personnel may be ordered when there is a reasonable belief that, an offense triable by court-martial has been committed; the person to be restrained committed the offense; and the restraint ordered is “required by the circumstances.” These circumstances include flight risk, probability of serious criminal misconduct and alternative, less severe forms of restraint are inadequate. R.C.M. 304(c); Article 9(d), R.C.M. 305(h)(2)(B). The standard for determining reasonable belief is probable cause.
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When determining whether the accused will engage in serious criminal misconduct, the following authorities should be referenced. R.C.M. 305(h)(2)(B)(iv) defines serious criminal misconduct as, “includes intimidation of witnesses or other obstruction of justice, seriously injuring others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command….” The Analysis of Rules for Courts-Martial states, “the ‘quitter’ who disobeys orders and refuses to perform duties” and who can have an “immensely adverse effect on morale and discipline…an infection in the unit.” Analysis of Rules for Courts-Martial, MCM, p. A21-18. Military Tribunals have applied these criteria in determining what constitutes serious criminal misconduct.
Serious criminal misconduct applied to an accused who willfully disobeyed and disrespected his superiors in the presence of new members of a student squadron. The Court stated that pretrial confinement was proper in order “to protect the unit’s discipline and morale from the accused’s disruptive behavior.” United States v. Rosato, 29 M.J. 1052 (A.F.C.M.R. 1990), rev’d in part, 32 M.J. 93 (C.M.A. 1991). A prisoner’s status as a suicide risk may be considered when determining the probability of serious misconduct. United States v. Savoy, 65 M.J. 854 (A.F. Ct. Crim. App. 2008).