U.S. v. Kreutzer, 70 M.J. 444

Trial Stages: Pretrial: Pretrial Punishment

1. Article 13, by its terms, only applies to persons held for trial

Trial Stages: Sentence and Punishment: Credits

1. after prison officials at the US Disciplinary Barracks retained appellant on death row despite the CCA setting aside his death sentence, appellant was not entitled to additional confinement credit under RCM 305, or Article 13, UCMJ, because he was still subject to lawful confinement as a prisoner found guilty of a number of offenses, and therefore, his confinement was outside the scope of RCM 305 and Article 13, which only apply to pretrial confinees; under the circumstances of this case, appellant was a prisoner convicted of very serious offenses with a temporarily inchoate sentence; he had not requested, and did not request, release from confinement; the fact that the capital sentence had been set aside, for reasons peculiar to capital litigation, did not convert him from an adjudged prisoner to a person held for trial as regards the offenses which the CCA had affirmed; at most, the retention of appellant on death row prompted a dispute not over punishment prior to trial (the concern of Article 13) or of the inception and continuation of pretrial confinement (the concern of RCM 305) but of the proper level of confinement; this decision is normally placed in the hands of correctional authorities, but that discretion may be limited by regulation; although in this case confinement authorities abused their discretion in retaining appellant on death row in violation of a regulation prohibiting the commingling of death row prisoners with other prisoners not subject to a death sentence, as an adjudged prisoner, appellant received the only relief he was entitled to for a violation of that regulation when he was ordered by an appellate court to be taken off death row; because appellant did not come within the purview of Article 13, UCMJ, he was entitled to no relief under it

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. regulations cannot change the statute