Pretrial Confinement Revisited

In United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007), the CAAF created a new ground for an accused to get additional pretrial confinement credit--for any abuse of discretion in the terms of an accused's confinement regardless of whether there was any intent to punish. See Pretrial Confinement

In that case, the CAAF found the Air Force violated its own pretrial confinement regulation, AFI 31-205, as follows:

para. 1.2.2.2.2. When seeking a correctional facility outside the DoD, the standards of confinement and treatment of inmates must meet or exceed what would be provided in a DoD facility. . . . .

para. 5.8.1.2. All pre-trial detainees will be housed in separate cells or sleeping areas, separated by sight, from post-trial inmates. . . . .

para. 7.1.1. Pre-trial detainees. Military members in pre-trial status are not convicted of a crime and will continue to wear the BDU uniform with authorized rank insignia, badges, patches, devices, etc. . . . Pre-trial detainees will not be placed in the same color distinctive uniform worn by adjudged and sentenced inmates [in accordance with R.C.M.] 304(f).

As first reported in CAAFlog, the Air Force released changes to AFI 31-205 on 6 July 2007. The changed sections read as follows:

1.2.2. (REPLACE). Pre-trial detainees or inmates in Department of Defense (DoD) or non-DoD correctional institutions are subject to that institution’s rules or directives including uniforms, discipline and treatment.

1.2.2.1. (REPLACE). The installation commander may authorize use of civilian facilities (federal, state, county, city and private contract) to incarcerate pre-trial detainees and inmates. Facilities must be approved or accredited by one of the following: American Correctional Association, American Jail Association, or by the state or federal Governments. (A list of the federally approved facilities may be obtained from the nearest US Marshal’s office.)

1.2.2.2. (REPLACE). Memorandum of Agreement (MOA). Any circumstance that would cause an anticipated incarceration at a location other than the parent installation requires a written MOA. Reasons for an installation to have a MOA in effect include, but are not limited to, the lack of an organic correctional facility, lack of bed space, the gender of the inmate, special needs of the inmate, etc. Emergency and unusual circumstances that would preclude the ability to properly execute a MOA will be coordinated through HQ AFSFC/SFC for assistance. If possible, HQ AFSFC/SFC will assist with placement and transfer of pre-trial detainees and inmates not covered by an existing MOA. The parent installation still retains responsibility to secure appropriate facilities.

1.2.2.2.1. (REPLACE). Possible alternatives for housing Air Force pre-trial detainees and
inmates are: civilian operated correctional facilities and jails, private correctional facilities and jails under contract to a civilian government agency, private correctional facilities and jails, other DoD/sister service correctional facilities and other Air Force correctional facilities.

1.2.2.2.2. (REPLACE). All MOAs must be in writing and should detail responsibilities and
services. Consult AFI 25-201, Support Agreements Procedures, for guidance. The standards of confinement and treatment of inmates and pre-trial detainees confined at non-DoD correctional institutions must meet or exceed those set by the American Correctional Association, American Jail Association, or the state or federal government agency that accredited or approved the facility.

1.2.2.2.2.1. (REPLACE). Suggested standards to be requested when negotiating a MOA
with a non-DoD correctional facility should include, but not be limited to, separation of
pre-trial detainees and post trial inmates, separation of offenders who committed minor offenses from those who committed serious offenses, facility condition and cleanliness.

5.8.1.2. (REPLACE). All pre-trial detainees in DoD confinement facilities will be housed in separate cells or sleeping areas, separated by sight, from post-trial inmates. They may share the same common areas at the same time. Pre-trial detainees are housed IAW Article 13, UCMJ.

7.1.1. (REPLACE). Pre-trial detainees in AF confinement facilities. Individuals in this status will continue to wear the ABU/BDU uniform with authorized rank insignia, badges, patches, devices, etc. If it is determined by the CSF that a pre-trial detainee poses a threat and/or is an escape risk the CSF may seek HQ AFSFC/SFC approval for a distinctive uniform (recommended: white jumpsuit). (Call 1-877-273-3098 for the SFC duty officer.) The distinctive uniform may be used with the following items worn as a minimum: cloth USAF tape, cloth nametape and cloth rank insignia. An aircrew style
patch may be used as a substitute for tapes/insignia. While housed in an AF confinement facility pre-trial detainees will not be placed in the same color of distinctive uniform worn by adjudged inmates IAW MCM, Part II, Chap. 3, Rule 304(f). NOTE: Pre-trial detainees housed at non-AF confinement facilities shall wear the uniform prescribed at that facility for the appropriate custody level.