How far is too far? Helping the commander to keep control without going over the line; the trial practitioner's guide to conditions on liberty and article 13 credit

The name given to the type of restraint imposed is not suasive, because nomina mutabilia sunt, res autem immobiles. (1)

I. Introduction

The trial counsel diligently works at his desk. The phone rings. The company commander, Captain Smith, has just found out that Private Snuffy has returned from his six-month absence without leave (AWOL). Captain Smith asks, "What can we do with this guy? Can I put him in jail? Can I lock him in the day room? Can I put him on restriction? What can I do so this guy doesn't flee again?" He wants an answer quickly.

A quick answer may be helpful, but quality advice will protect everyone's interests. The trial counsel's first priority should be to advise the command of the proper action to take. If the defense counsel files a motion claiming that illegal pretrial punishment or unduly harsh circumstances of confinement have occurred, the actions taken are what will later be judged to determine if the accused will be entitled to credit. Good intentions, although a factor, will not always suffice before the judge. The commander's actions will carry the day when arguing a motion in the area of pretrial restraint. However, one should also advise commanders on maintaining the proper terminology under the Rules of Court Martial (RCM), such as "conditions on liberty" and "pretrial restraint."

This primer discusses the proper actions for pretrial restraint and conditions on liberty. This article will assist the practicing trial counsel in making the right decisions in advising the commander on appropriate pretrial restraints and conditions on liberty. Furthermore, this primer will assist defense counsel in recognizing when the command has gone too far on appropriate pretrial restraint and conditions on liberty. When the command does go too far, this primer will assist the defense counsel in filing an appropriate Article 13 motion. (2)

II. The Basics

A. Pretrial Restraint (RCM 304) or Pretrial Confinement (RCM 305)

Rule for Courts-Martial 304 provides that "pretrial restraint is moral or physical restraint on a person's liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, (3) restriction in lieu of arrest, (4) arrest, (5) or confinement." (6)

The trial counsel and defense counsel must understand the proper use of conditions on liberty. "Conditions on liberty include orders to report periodically to a specified official, orders not to go to a certain place (such as the scene of an alleged offense), and orders not to associate with specified persons (such as the alleged victim or potential witnesses)." (7) These types of conditions on liberty often include limits to the company area, place of duty, the dining facility, and place of religious worship. For example, conditions that limit off post access or limit on-post access to certain places have been deemed proper conditions on liberty. (8)

"Conditions on liberty must not hinder pretrial preparation, however. Thus, when such conditions are imposed, they must [be] sufficiently flexible to permit pretrial preparation." (9) Commanders should ensure that the accused Soldier has adequate access to his defense counsel. Adequate access to defense counsel requires commanders to allow for adequate time during the duty day, if necessary, and for adequate consultation and preparation with defense counsel.

A proper condition on liberty will not equate to any credit for pretrial confinement or restraint. Proper conditions on liberty will also not start the 120-day speedy trial clock. (10)

Although not always dispositive for judges ruling on actions by the command, trial counsel should reinforce proper terminology to commanders. Proper terminology will assist trial counsel in teaching commanders the reasons behind conditions on liberty. A condition on liberty is not a term used to carry out punishment. On the other hand, the term "restriction" connotes punishment. For example, commanders often want to restrict the Soldier to post or to the barracks. Restriction is generally a term for post-Article 15 punishment. (11) Use of proper terminology is a tool for counsel to ensure that conditions put on the Soldiers are for control purposes rather than a means for punishment. Commanders should continuously be trained on the underlying reasoning behind their actions. The commander's reasons and actions must include a focus on control, not punishment. Despite terminology, however, when conditions on liberty become punishment or become too onerous, credit may be granted. In general, the courts have determined that credit shall be granted under RCM 305 (12) in situations where conditions on liberty or pretrial restraint are so onerous that it equates to "restriction tantamount to confinement." (13)

B. Pretrial Restraint, Restriction Tantamount to Confinement or Physical Restraint

One critical reason why the trial counsel must give good advice on pretrial restraint or conditions on liberty is judicially-based credit. If the command sets conditions that are too harsh or too restrictive, these conditions may later be judged as "tantamount to confinement" that rises to physical restraint. (14) The defense counsel will want to evaluate all conditions on liberty to determine if a motion for credit is appropriate. Defense counsel need to assess all orders that are close to or appear to be actual "physical restraint."