TRIAL STAGES: Pretrial: Pretrial Punishment

2019 (October Term)

United States v. Guardado, 79 M.J. 301 (Article 13, UCMJ, provides in part that no person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence; the question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; in the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective).

(in this case, the military judge did not err in denying appellant’s motion for confinement credit under Article 13, UCMJ, for the government’s failure to restore him to his original E-8 pay status after his original court-martial sentence (and reduction to E-1) was set aside and he was pending a sentence rehearing; the military judge correctly found that paying appellant as an E-1 was not punishment, but rather the result of the Defense Finance and Accounting Service following binding judicial authority from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims, and the policy served a legitimate, nonpunitive governmental objective of providing appellant with the proper pay pending in light of the jurisdiction of those courts to adjudicate military pay disputes). 

(Article 75(a), UCMJ, provides that all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing). 

(in Howell v. US (75 MJ 386 (CAAF 2016), the CAAF contradicted precedent from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims and held that after a rehearing is ordered and the accused is no longer confined, the accused should then receive full restoration of rank and pay; although the CAAF adheres to this interpretation of Article 75(a), UCMJ, its interpretation of Article 75(a), UCMJ, was not binding upon DFAS when resolving military pay disputes because proper pay determination is not within the CAAF’s statutory jurisdiction, as Congress has specified that the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims have jurisdiction over such disputes; the CAAF urged Congress and the President to establish rules that clarified this aspect of Article 75(a), UCMJ; in the 2017 National Defense Authorization Act, Congress did just that when it amended Article 75, UCMJ, to allow the President to determine by regulation the pay of servicemembers after the executed portion of their court-martial is set aside; on March 1, 2018, the President amended Rule for Courts-Martial 1208(b) to require pay at the pretrial grade while an accused awaits a rehearing; although the President could have made this change effective immediately, he instead chose not to make it effective until January 1, 2019, a date after appellant’s rehearing). 

2015 (September Term)

Howell v. United States, 75 M.J. 386 (a military judge, in finding an Article 13, UCMJ, violation for the government’s failure to pay appellant at his prior pay grade pending the results of a rehearing of his court-martial, did not exceed his authority by not following Article III courts’ holdings that appellant was only entitled to be paid as an E-1 pending the results of a rehearing; determining whether the government’s action of not paying appellant as an E-6 (his pay grade prior to his initial conviction) pending the results of the rehearing amounted to an Article 13, UCMJ, violation is properly within the jurisdiction of the military courts; this determination necessarily requires an interpretation of Article 75(a), UCMJ, an article that provides for the restoration of property when a court-martial sentence has been set aside by an appellate court; this is the sort of issue for which the military court ought not to defer to an Article III court’s interpretation).

(the question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; in the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective; irrespective of any intent to punish, Article 13, UCMJ, is violated if the activity at issue serves no legitimate, nonpunitive purpose). 

(under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit). 

2014 (September Term)

United States v. Carter, 74 M.J. 204 (the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence).

2011 (September Term)

United States v. Kreutzer, 70 M.J. 444 (Article 13, by its terms, only applies to persons held for trial).

United States v. Zarbatany, 70 M.J. 169 (conversion of confinement credit to forms of punishment other than those found in RCM 305(k) is generally inapt; this is especially true in the case of punitive discharges, where the qualitative differences between punitive discharges and confinement are pronounced; however, Article 13, UCMJ, does not preclude forms of relief other than confinement credit; and RCM 305(k) does not exclusively delimit the form of relief lawfully available for violations of Article 13, UCMJ). 

(Article 13, UCMJ, relief can range from dismissal of the charges, to confinement credit, or to the setting aside of a punitive discharge; where relief is available, meaningful relief must be given for violations of Article 13, UCMJ; however, relief is not warranted or required where it would be disproportionate to the harm suffered or the nature of the offense).

(Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial; the first prohibition of Article 13 involves a purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; the second prohibition of Article 13 prevents imposing unduly rigorous circumstances during pretrial detention; conditions that are sufficiently egregious may give rise to a permissive inference that an accused is being punished, or the conditions may be so excessive as to constitute punishment). 

(although merely classifying a pretrial inmate as maximum custody or comingling an inmate with post-trial inmates are not per se violations of Article 13, UCMJ, arbitrarily segregating a pretrial inmate for two weeks in a six-by-six, windowless cell did violate Article 13, UCMJ, and merited relief in the form of confinement credit under RCM 305(k)). 

69 (the primary mechanism for addressing violations of Article 13, UCMJ, and the remedy for illegal pretrial confinement has been confinement credit; the plain language of RCM 305(k) requires that after the convening authority has applied confinement credit to the adjudged confinement, the convening authority may then apply any excess confinement credit against (1) hard labor without confinement, (2) restriction, (3) fine, and (4) forfeiture, in that order, and credit shall not be applied against any other form of punishment; as a result, RCM 305(k)’s plain language excludes a punitive discharge from permissible applications of illegal confinement credit under the rule). 

(although RCM 305(k) is the principal remedy for Article 13, UCMJ, violations, courts must consider other relief for violations of Article 13, UCMJ, where the context warrants; other relief may range from disapproval of a bad-conduct discharge, to complete dismissal of the charges, depending on the circumstances). 

(the question of what relief is due to remedy an Article 13 violation, if any, requires a contextual judgment, rather than the pro forma application of formulaic rules; whether meaningful relief has been granted and should be granted will depend on factors such as the nature of the Article 13, UCMJ, violations, the harm suffered by appellant, and whether the relief sought is disproportionate to the harm suffered or in light of the offenses for which appellant was convicted). 

(meaningful relief for violations of Article 13, UCMJ, is required, provided such relief is not disproportionate in the context of the case, including the harm appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review). 

2009 (September Term)  

United States v. Williams, 68 M.J. 252 (RCM 305(k) provides an independent basis for the award of additional confinement credit where there has been a violation of service regulations when those regulations reflect long-standing concern for the prevention of pretrial punishment and the protection of servicemembers’ rights). 

(administrative relief under R.C.M. 305(k) is appropriate where confinement officials have knowingly and deliberately violated provisions of service regulations designed to protect the rights of presumptively innocent servicemembers). 

(military judge did not abuse his discretion in awarding one-for-one pretrial confinement credit under Article 13, UCMJ, where an alternative basis for confinement credit could have been based on RCM 305(k); while RCM 305(k) could have provided an alternative basis for relief, the factual basis for credit under either Article 13, UCMJ, or RCM 305(k) under the facts of this case was the same conduct on the part of the confinement officials).

(Article 13, UCMJ, prohibits the imposition of punishment prior to trial; alleged violations of Article 13, UCMJ, require scrutinizing the government’s purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective). 

(appellant was not entitled to additional sentencing credit based on conditions of his pretrial confinement while he was on “suicide watch” status, beyond the one-for-one credit he was awarded by the military judge for that period; although appellant was denied books, a radio, and CD player, was subjected to 24-hour lighting, and was required to wear a suicide gown, those conditions were directly related to his “suicide watch” status, were considered by the military judge in his decision on credit, did not show an intent to punish, and served a legitimate, nonpunitive governmental objective). 

United States v. Harris, 66 M.J. 166 (appellant has the burden of establishing his entitlement to relief for pretrial punishment under Article 13, UCMJ). 

(under Article 13, UCMJ, no person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence)

 
(Article 13, UCMJ, prohibits two things:  (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial; the first prohibition of Article 13 involves a purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; the second prohibition of Article 13 prevents imposing unduly rigorous circumstances during pretrial detention; conditions that are sufficiently egregious may give rise to a permissive inference that an accused is being punished, or the conditions may be so excessive as to constitute punishment). 

(appellant failed to meet his burden to establish his entitlement to additional confinement credit for alleged improper denial of necessary medical care, where he was seen daily by medical personnel and did not express any concern about his medical care until he discovered and reported blood in his urine, and brig personnel took appropriate action thereafter).

(appellant failed to meet his burden to establish his entitlement to additional confinement credit for alleged unduly rigorous brig conditions beyond that already granted by the court of criminal appeals; the court of criminal appeals had granted him one additional day of credit for each of the days he spent in pretrial confinement because he had been placed in maximum custody solely based on the nature and seriousness of the charges against him, and the government had presented no evidence that he was a flight risk or that there was any risk that he would harm himself or others if lesser degrees of restraint were utilized)

(a person accused of a crime retains the presumption of innocence and may not be punished pending trial; if the conditions of pretrial restraint are more rigorous than necessary to ensure the presence of an accused at trial or to prevent additional misconduct, the accused may receive credit against the adjudged sentence). 

United States v. Adcock, 65 M.J. 18 (Article 13, UCMJ, prohibits punishment prior to trial; the President has further addressed pretrial punishment in RCM 304(f) where he has directed that prisoners being held for trial shall not be required to wear special uniforms prescribed only for post-trial prisoners, and that prisoners shall be afforded facilities and treatment under regulations of the service secretaries). 

(the plain language of RCM 304(f) prohibiting pretrial punishment clearly vests the service secretaries, rather than confinement officials, with the discretion to enact rules concerning pretrial facilities and the treatment of pretrial confinees; the service secretaries can make those regulations mandatory or advisory in nature). 

(commingling pretrial confinees with post-trial inmates, without more, does not automatically constitute a violation of Article 13, UCMJ; however, service regulations can provide greater protections than Article 13, and, in fact, most services have continued to explicitly outlaw commingling of pretrial confinees with convicted inmates).

United States v. King, 61 M.J. 225 (Article 13, UCMJ, prohibits two things:  (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial; the first prohibition of Article 13 involves a purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; the second prohibition of Article 13 prevents imposing unduly rigorous circumstances during pretrial detention; conditions that are sufficiently egregious may give rise to a permissive inference that an accused is being punished, or the conditions may be so excessive as to constitute punishment). 
 
(this Court is reluctant to second-guess the security determinations of confinement officials). 
 
(although the lack of complaint is some evidence that an accused is not being punished in violation of Article 13, UCMJ, the fact that a complaint is made does not necessarily demonstrate punishment or penalty; prisoners can be very vocal about their conditions without those complaints actually reflecting any unlawful pretrial punishment).
 
(commingling pretrial confinees with post-trial inmates is a factor to consider when assessing conditions of confinement, but alone it is not a per se violation of Article 13, UCMJ).
 
(a pretrial confinee held in a six-by-six windowless segregation cell for two weeks because of limited confinement facilities on base and the denial of a confinement official’s request for a waiver against commingling was subjected to punishment; the decision to confine this pretrial confinee in a segregated environment otherwise reserved for inmates with disciplinary problems was an arbitrary response to the physical limitations of the base; placing a pretrial confinee in a segregated environment with all the attributes of severe restraint and discipline, without an individualized demonstration of cause in the record, was so excessive as to be punishment and is not justified by the base confinement facility’s space limitations; an appropriate credit in this instance is three days of administrative credit for each day he endured solitary segregation; this credit is in addition to any other confinement credits to which he is entitled). 

United States v. Fischer, 61 M.J. 415 (Article 13, UCMJ, prohibit two types of activities: (1) the intentional imposition of punishment on an accused prior to trial, i.e., illegal pretrial punishment; and (2) pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement).

(a violation of the illegal pretrial punishment prong of Article 13 entails a purpose or intent to punish an accused before guilt or innocence has been adjudicated; this standard is applied by examining the intent of the detention officials or by examining whether the purposes served by the restriction or condition are reasonably related to a legitimate governmental objective).

(the government’s policy of retroactively paying persons held past their EAS when a charge has not been sustained at trial does not signify an intent to punish the other group; acquittal provides a rational, objective basis for reimbursement). 

(the pay of military personnel is not terminated upon the filing or referral or charges, nor is it terminated upon pretrial confinement; the fact that pay is terminated only when pretrial confinement is combined with a neutral criterion, the expiration of the term of service, underscores the non-punitive nature of the policy; the EAS date is a rational, objective point for termination of pay, and it is reasonably related to the legitimate government objective of not paying people who are not performing duties). 

(the following seven factors may be used in determining whether a DoD financial management regulation is punitive or regulatory in nature: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation promotes retribution and deterrence -- the traditional aims of punishment; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned).

(terminating the pay of a servicemember in pretrial confinement whose obligated service has expired in accordance with a DoD financial management regulation did not constitute illegal pretrial punishment; there was no intent to punish; the regulation was not implicitly punitive or punitive in effect; there was a legitimate, non-punitive reason behind the regulation; and the application of the policy was reasonable, given that servicemember had reached his EAS and was not performing productive services).

2003

United States v. Inong, 58 MJ 460 (Article 13 prohibits two things: (1) the intentional imposition of punishment on an accused before his or her guilt is established at trial, i.e., illegal pretrial punishment, and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement; if an accused, or appellant, can demonstrate that either existed, he or she is entitled to sentence relief).

(in United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we will not invoke waiver of alleged Article 13 violations unless there is an affirmative, fully developed waiver on the record; today, however, the Court concludes Huffman’s affirmative waiver rule is unworkable; as a result, the Court now overrules Huffman and begins followings the "raise or waive" rule required by the Manual for Courts-Martial, United States, as relates to assertions of illegal pretrial confinement and punishment; in so doing, the Court also overrules United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), to the extent they establish a "tantamount to affirmative waiver" rule in the Article 13 arena; the Court therefore holds that once this opinion becomes final, failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error; having said that, however, the Court urges all military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that they should).

2002

United States v. Mosby, 56 MJ 309 (the burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13).

(the question whether appellant is entitled to credit for a violation of Article 13 is a mixed question of fact and law; a military judge’s findings of fact, including a finding of no intent to punish, will not be overturned unless they are clearly erroneous; the ultimate question whether an appellant is entitled to credit for a violation of Article 13 will be reviewed de novo).

(the question of intent to punish is one significant factor in the judicial calculus for determining whether there has been an Article 13 violation).

(other than introducing evidence that appellant was placed in solitary confinement based on the charge alone, appellant has not introduced any evidence of an intent to punish; therfore, based on this record, the military judge’s findings were not clearly erroneous and, as a matter of law, that appellant was not entitled to additional sentence credit for an Article 13 violation).

United States v. Corteguera, 56 MJ 330 (although a pretrial detainee may not be subjected to punishment for the crime for which he is charged, he may be subjected to “discomforting” administrative measures reasonably related to the effective management of the confinement facility).

(even if “discomforting” administrative measures imposed upon a pretrial detainee are not reasonable, de minimis impositions on a pretrial detainee are not cognizable under Article 13, UCMJ).

(orientation procedures routinely applied to all persons being committed to the custody of the confinement facility did not publicly humiliate appellant to the extent condemned by case law; even if these orientation procedures were inappropriate for a pretrial detainee, they constituted de minimis impositions on a pretrial detainee for which administrative credit was not required).

(credit for unlawful pretrial punishment under Article 13, UCMJ, is not warranted each time a penal regulation is violated, and not all mistreatment of a servicemember awaiting trial requires additional sentence credit; singing and shouting out required of appellant and the sarcasm directed at him fell into this legally marginal category).

(reduction in rank is a well-established punishment, which unlawfully imposed, warrants sentence relief).

(the mere fact a pretrial detainee and a sentenced prisoner are assigned the same or similar work inside a confinement facility does not per se establish unlawful pretrial punishment under Article 13, UCMJ).

(the nature, purpose, and duration of duties performed by the pretrial detainee are determinative of their punitive intent; however, filling sandbags, washing and waxing vehicles, painting red lines, and doing yard work are not acts indicative of punitive intent, nor so onerous under the circumstances of this case as to constitute unlawful pretrial punishment).

(military judge was not required to give additional sentencing credit for the minimally discomforting treatment shown to have been administered by the military prison authorities in this case)

2001

United States v. Fulton, 55 MJ 88 (where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate).

(even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right).

(although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law).

United States v. Stringer, 55 MJ 92 (pretrial punishment includes public denunciation and degradation).

(a military judge has broad authority to order administrative credit against adjudged confinement as a remedy for Article 13 violations).

(a newspaper article describing the facts of appellant’s pretrial punishment, summarizing relevant case law on pretrial punishment, and cautioning that pretrial punishment is illegal complied with a military judge’s order to publish such an article in the post paper).

2000

United States v. Yunk, 53 MJ 145 (in a “Judgement of the Court” (two judges agreeing), the action of the Court of Criminal Appeals, which granted appellant relief for 11 days of illegal pretrial confinement by reducing the adjudged and approved forfeitures, was affirmed despite the fact that the reduction in forfeitures provided no “meaningful” relief in light of automatic forfeitures; there was no abuse of discretion in declining to set aside the punitive discharge or otherwise massively reduce the various sentencing components).

United States v. Fricke, 53 MJ 149 (absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal).

(being locked in a cell 23 hours a day for 326 days, being required to sit at a small desk for 15 ½ hours or stand nearby if appellant fell asleep at the desk because he was not allowed to sit or lie on his bunk, not being allowed to talk to other prisoners, and being allowed to read only the Bible or other Christian literature are not de minimus impositions on a pretrial detainee for which the law is not concerned; they are genuine privations and hardships over an extended period of time which might raise serious questions as to whether these conditions amounted to pretrial punishment).

(a factual decision on the intent of detention officials and the conditions actually imposed upon appellant was necessary to decide whether appellant was subjected to illegal pretrial punishment).

(factors to consider in determining whether pretrial restraint has crossed the threshold into pretrial punishment include:  (1) similarities in routine, assignments, attire, restraints, and conditions between sentenced prisoners and those awaiting disciplinary disposition; (2) the relevance to customary and traditional military command and control measures that can be established for such similar measures; (3) whether those requirements and procedures are primarily related to command control needs, or do they reflect a primary purpose of stigmatizing persons awaiting disciplinary disposition; and (4) whether there was an intent to punish or stigmatize a person awaiting disciplinary disposition).

United States v. Southwick, 53 MJ 412 (pretrial punishment is not waived by failure to raise the issue at trial unless there is an affirmative, fully developed waiver on the record).

(appellant’s tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906 was tantamount to an affirmative waiver in this case, because appellant made an election between two available alternatives).

(where appellant made a tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906, it was not plain error for the military judge not to grant, sua sponte, additional confinement credit for pretrial punishment).

 United States v. Tanksley, 54 MJ 169 (appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue).