Pre Trial Confinement and Restriction Explained

A batch of uniforms are neatly folded and sorted according to size at the Camp Lejeune Base. (U.S. Marine Corps photo/Lance Cpl. Drew W. Barker)

Pretrial confinement is physical restraint while awaiting trial or a hearing.

Although the military justice system does not provide for bail, the service member is entitled to the same Fourth Amendment probable cause safeguard as a civilian confined prior to trial. In an important contrast to the civilian system, an accused servicemember continues to draw full pay and allowances while in pretrial confinement.

The commanding officer and the independent review officer weigh the need for pretrial confinement against other available forms of restraint.

The military justice system recognizes three other forms of restraint: conditions on liberty, restriction in lieu of arrest, and arrest.

  1. Conditions on liberty are imposed by a commanding officer, it 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.
  2. Restriction in lieu of arrest 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 base, ship, barracks, or other secured area. This can be done by confiscating identification or notifying a sentry of this person’s situation.
  3. Arrest differs from restriction by suspending the performance of duties that involve supervision of subordinates, serving as a guard, or bearing arms. Often a person is transferred to another office or command while awaiting the outcome of their charges. 

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