Additional Pretrial Confinement

United States v. Adcock, No. 06-0714/AF (C.A.A.F. May 3, 2007)

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, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000). "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." United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).

Air Force Lieutenant Heidi Adcock received a pretrial restraint order restricting her to the confines of Travis Air Force Base. She violated the order and was subsequently ordered into pretrial confinement. Because Travis AFB did not have a confinement facility, Lt Adcock was confined in a local civilian confinement facility pursuant to a memorandum of agreement with the local sheriff. During her pretrial confinement, Lt Adcock was housed in two facilities. She was housed with other prisoners, including some who had been convicted but not sentence, was required to wear a jumpsuit whose color was based on security classification rather than whether she was a pretrial or post-trial inmate. During her pretrial confinement, Lt Adcock never protested the conditions of her confinement.

Lt Adcock pled guilty and was sentenced to a dismissal and confinement for 15 months. The military judge granted Lt Adcock confinement credit for the 157 days she spent in pretrial confinement. Lt Adcock asked the judge to grant her an additional 157 days credit because the conditions of her confinement violated the terms of Air Force Instruction 31-205. That instruction provides that (1) inmates in military or nonmilitary confinement institutitions are subject to that institution's rules; (2) the standards of confinement and treatment of inmates must meet or exceed what would be provided in DoD facilities; (3) pretrial confinees in civilian facilities be treated at least as well as they would in military facilities; (4) pretrial confinees are to be housed in separate cells, separated by sight from post trial inmates; and (5) pretrial detainees are to continue to wear the BDU (battle dress uniform).

The military judge found that the conditions of Lt Adcock's confiement violated the provisions of AFI 31-205, but declined to grant her additional credit. Lt Adcock did not appeal this finding. Nevertheless, the Air Force Court of Criminal Appeals raised it and specified the issue. In a 5-4 decision, the court sitting en banc, held the military judge did not abuse his discretion in not granting Lt Adcock additional pretrial confinement credit.

In a 3-2 decision, the CAAF held the military judge abused his discretion by not granting her 157 days of additional pretrial confinement credit. The majority opinion, authored by Judge Erdmann seems to rely on the following logic:

(1) In R.C.M. 304(f), the President prohibited pretrial restraint to be used as punishment, prisoners can't be required to wear the same uniforms as sentenced prisoners, and "[p]risoners shall be afforded facilities and treatment under regulations of the Secretary concerned."

(2) The Secretary of the Air Force promulgated mandatory rules in AFI 31-205 that were not followed in Lt Adcock's case.

(3) The Government is required to follow its own regulations.

(4) "The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances." R.C.M. 305(k). We are now creating a new rule -- the 1998 amendment to R.C.M. 305(k) established an additional basis for credit.

(5) The failure of Air Force confinement officials to follow their own regulations was an abuse of discretion.

(6) The military judge abused his discretion in not granting additional credit.

Judge Stucky, joined by Judge Ryan dissented. The dissent concedes that Air Force officials failed to follow their own regulation, but did not find that dispositive to Appellant's claims. Instead, it focuses on a more comprehensive analysis of R.C.M. 305 and the law of pretrial confinement. The reasoning is as follows:

(1) A violation of Article 13 requires a finding of intent to punish --the military judge correctly found there was no evidence of such an intent in this case. R.C.M. 304(f) and R.C.M. 305 are the President's implementation of Article 13, UCMJ.

(2) R.C.M. 305(k) provides the military judge with the discretion to grant additional confinement credit for abuses of discretion and unduly harsh circumstances of confinement.

(3) The phrase abuse of discretion must be read in conjunction with R.C.M. 305(j) which requires the military judge, on motion of the defense, to review the placement and retention of the accused in pretrial confinement for an abuse of discretion. If the military judge (or the appellate courts) conclude there was an abuse of discretion in any decision to place or retain the accused in pretrial confinement, the judge may grant additional pretrial confinement credit.

(4) If an accused wishes to contest the conditions of her confinement, it is under the unduly harsh circumstances prong of R.C.M. 305(k), not the abuse of discretion prong.

(5) The Secretary of the Air Force has means of enforcing his regulation other than granting additional confinement credit. If he wanted a pretrial detainee to be granted additional confinement credit for violations of his regulation, he would have said so.

Every military justice practitioner should read this case. It shows how differently judges can read the same rules and regulations. Some of my thoughts concerning this case:

(1) The Secretary of the Air Force certainly knows there are many Air Force bases without confinement facilities. He also knows, or should know, that no civilian confinement facility is going to follow military confinement rules or regulations. So what was he or his staff thinking when they signed off on this regulation. What was the attorney who signed off on this regulation thinking. It will be interesting to see if the Secretary of the Air Force does anything to revoke parts of the regulation or specifically state that it shall not be the basis for additional confinement credit under R.C.M. 305(k).

(2) After reading Article 13, R.C.M. 304(f), and R.C.M. 305, I am certain that by changing R.C.M. 305(k) to permit the military judge to grant additional pretrial confinement credit, the President did not intend to promulgate a new rule by which an accused would be granted additional confinement for any violation of a service regulation.

(3) From now until the President clarifies the rule -- which I have no doubt he will do (although such changes usually take 3 or more years to coordinate through DoD, DOJ, OMB, etc.) -- trial judges should expect to litigate claims that the service failed to follow its own regulation. You have to wonder how small the violation can be and still warrant invocation of the R.C.M. 305(k) remedy.