Your Money or Your Liberty: Clarifying Military Contingent Confinement

Abstract

Your money or your liberty? Barring certain limitations, monetary penalty or incarceration awaits service members who have fines and contingent confinement — i.e., sentence conditions allowing for the imposition of confinement if an individual fails to pay a punitive fine — adjudged against them under the military justice system. This is the case despite recent significant changes to the Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) and contrary interpretations of how to implement contingent confinement. The RCM outlines military fine enforcement through contingent confinement in Rule 1003(b)(3), which states that sentences including fines “may be accompanied by a provision” providing “that, in the event the fine is not paid,” the convicted individual may be “confined until a fixed period considered an equivalent punishment to the fine has expired.” Although another rule addressing this punishment was removed from the RCM by Executive Order 13825 in 2018 — Rule 1113(e)(3), which described contingent confinement as replacing any associated fine and the manner in which this substitution must take place — Rule 1003(b)(3) was left unchanged. Both courts and scholars, however, have stumbled in interpreting this Rule, creating confusion as to its true legal effect and viability for achieving certain penological outcomes. In light of the aforementioned recent removal of Rule 1113(e)(3) from the RCM and inaccurate scholarly and judicial presentations, this article clarifies the law of military fine enforcement through contingent confinement and offers recommendations for its use.

Keywords: Military Justice, Contingent Confinement, Criminal Law, Debtor's Prisons

JEL Classification: K14, K1, K40, K42