U.S. v. Smith, 56 M.J. 290

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. pretrial confinement, imposed and administered in a lawful manner, is not per se cruel or unusual punishment under either Article 55 or the Eighth Amendment, and no constitutional violation arises from failure to give credit for pretrial detention unless there is a violation of the Equal Protection Clause of the Fifth Amendment

Trial Stages: Pretrial: Pretrial Confinement

1. pretrial confinement, imposed and administered in a lawful manner, is not per se cruel or unusual punishment under either Article 55 or the Eighth Amendment, and no constitutional violation arises from failure to give credit for pretrial detention unless there is a violation of the Equal Protection Clause of the Fifth Amendment
2. as written, 18 USC § 3585(b) and DODI 1325.7 apply only to prisoners serving sentences to adjudged confinement; the decision whether to extend DODI 1325.7 or RCM 305 to give pretrial confinement credit to persons not sentenced to confinement is a matter of Executive prerogative, and, to date, neither the President nor the Secretary of Defense has exercised that prerogative

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

1. whether an appellant is entitled to pretrial confinement credit is reviewed de novo
2. whether an appellant has been punished in violation of Article 55 or the Eight Amendment is reviewed de novo