When a service member is held in pretrial confinement and the conditions are found to be inadequate or illegal, they are entitled to additional credit against any sentence they later receive. The standard calculation is a day-for-day credit for time spent in pretrial confinement. However, under the precedent set by the court case United States v. Allen, a military judge can grant enhanced credit when the conditions of the confinement were overly harsh or violated the law.
The defense attorney will file a motion requesting this additional “Allen credit.” To support the motion, the attorney will present evidence of the inadequate conditions. This could include testimony from their client and other inmates about a lack of proper food, hygiene facilities, or medical care. It could also include evidence that the accused was improperly commingled with sentenced prisoners or was subjected to punishment or abuse, which is a violation of Article 13, UCMJ. The attorney will argue that the illegal conditions made each day of confinement more onerous than a normal day.
The military judge will then determine how much additional credit to award. It is common for a judge to grant 1.5 or 2 days of credit for every 1 day spent in unlawful confinement conditions. In truly egregious cases, the credit can be even higher. This enhanced credit is then applied against any sentence to confinement, potentially reducing it significantly. If there is no sentence to confinement, the judge can apply the credit to reduce other punishments, such as forfeitures of pay or a fine, ensuring the member receives meaningful relief for the violation of their rights.