U.S. v. Smith, Jr, 53 M.J. 168

Trial Stages: Pretrial: Pretrial Restraint

1. placement in administrative restraint can be justified on the basis of ensuring the servicemember’s safety under the military purpose justification of RCM 304(h)
2. military judge correctly found that pretrial conditions imposed upon appellant did not amount to pretrial punishment: (1) appellant had stolen from others in his dormitory, and restricting his unescorted access was appropriate; (2) other restrictions imposed upon appellant applied equally to each individual housed in a special squadron, whether there for disciplinary or administrative purposes; (3) appellant’s dress was a result of appellant’s own misunderstanding and not an order to dress distinctively; (4) there was legitimate concern for appellant’s safety; and (5) the command was concerned about the possibility of appellant committing further thefts from other cadets

Trial Stages: Pretrial: Pretrial Punishment

1. Article 13, UCMJ, and RCM 304(f) prohibit pretrial punishment
2. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. military judge’s factual finding that there was no intent to punish is reviewed under a clearly erroneous standard of review; in the absence of factual findings relating to intent to punish, Court will address the issue of illegal pretrial punishment de novo, as a mixed question of law and fact