Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Articles 96 and 97 represent opposite poles of custody misconduct. Article 96 punishes those who release prisoners improperly or allow them to escape through negligence. Article 97 punishes those who detain people improperly, holding them without lawful authority. One offense involves letting someone go who should be held. The other involves holding someone who should be free. Both offenses concern the abuse of custody authority, but they address completely different forms of that abuse.
The Fundamental Opposition
Article 96 addresses failures to maintain custody. When someone who is supposed to be confined ends up free because of another person’s deliberate act or negligence, Article 96 applies.
Article 97 addresses wrongful imposition of custody. When someone who should be free ends up confined because of another person’s deliberate act, Article 97 applies.
This opposition creates a conceptual symmetry. The military justice system cares about custody being properly maintained: those who should be held must be held, and those who should be free must be free. Deviating in either direction is criminal.
Article 96: Letting Go Who Should Be Held
Article 96 covers two forms of misconduct:
Releasing without proper authority. Deliberately setting a prisoner free when you have no authorization to do so. This might involve unlocking a cell, removing restraints, or simply allowing a prisoner to walk away.
Suffering escape through neglect. Failing to exercise proper care over a prisoner, resulting in their escape. This doesn’t require intent to release; negligence that enables escape is sufficient.
Both variants assume the prisoner’s detention was lawful. The prisoner should have been in custody. The accused’s misconduct disrupted that proper custody.
Article 97: Holding Who Should Be Free
Article 97 addresses unlawful detention. The offense occurs when someone, without proper authority, apprehends, arrests, or confines any person. The detained person shouldn’t have been in custody at all, or shouldn’t have been in custody under those circumstances or by that person.
Article 97 requires that the detention be “unlawful.” This means either:
The accused had no authority to detain anyone under the circumstances
The accused exceeded their authority (detaining someone they couldn’t lawfully detain)
The detention itself was improper (wrong person, wrong reason, wrong procedure)
The victim of an Article 97 offense is someone whose liberty was wrongfully restricted. This might be a civilian, a fellow service member, or anyone else improperly held.
Why These Offenses Are Confused
Confusion arises because both offenses involve custody and authority. Service members responsible for custody decisions can potentially violate either article depending on what they do wrong.
Consider a guard at a detention facility:
If the guard releases a properly confined prisoner without authorization, that’s Article 96.
If the guard detains someone who shouldn’t be there (perhaps a visitor, or someone whose release was authorized), that’s Article 97.
The guard is in a position where errors in either direction create criminal liability. Understanding which article applies requires asking: Was this person properly subject to custody?
Authority to Detain: The Central Question
Both articles hinge on authority. Article 96 assumes the prisoner was properly detained (lawful authority existed) and asks whether the release was proper. Article 97 asks whether the detention itself was proper (lawful authority existed).
Authority to detain in the military comes from various sources:
Command authority. Commanders can order pretrial confinement or restriction under appropriate circumstances.
Provost marshal/military police authority. Military law enforcement can apprehend and temporarily detain persons.
Guard authority. Those assigned custody of prisoners have authority to maintain that custody.
Citizen’s arrest authority. In limited circumstances, any person can detain someone caught committing an offense.
When someone acts outside these authorities, or exceeds what their authority permits, detention becomes unlawful. When someone with custody authority fails to exercise it properly, release or escape may occur.
Scenarios Illustrating Each Offense
Article 96 (releasing prisoner):
A Sergeant is assigned to escort a prisoner from one facility to another. Midway through the journey, the Sergeant decides the prisoner “seems like a good guy” and lets him go. The prisoner was properly confined; the Sergeant had no authority to release him. This is Article 96.
A guard at a brig falls asleep during the night shift. A prisoner notices, picks the lock, and escapes. The guard’s negligence caused the escape. This is Article 96 (suffering escape through neglect).
Article 97 (unlawful detention):
An NCO, angry at a junior service member, locks the junior member in a supply closet for several hours as “punishment.” The NCO had no authority to confine the junior member. This is Article 97.
A military police officer apprehends someone based on a mistaken identification and holds them overnight without proper process. Even if the MP believed the detention was proper, holding the wrong person without correcting the error constitutes unlawful detention. This is Article 97.
A commander orders a service member confined pretrial but lacks authority to do so under the circumstances (perhaps the offense alleged doesn’t warrant confinement, or proper procedures weren’t followed). The confinement is unlawful. This is Article 97.
The Role of Good Faith
Article 97 requires that the detention be “unlawful.” This raises questions about good faith mistakes.
If someone genuinely believes they have authority to detain, and their belief is reasonable under the circumstances, does that negate the offense? The answer is nuanced. A reasonable mistake of fact might negate liability (for example, apprehending the wrong person based on a reasonable identification error). But a mistake of law (incorrectly believing you have authority you don’t have) typically doesn’t excuse unlawful conduct.
Article 96’s release variant also involves authority questions. A guard who genuinely believes a release order is valid, and releases a prisoner based on that belief, might argue lack of intent. However, negligence in verifying authority could still support charges.
Punishment Comparison
Article 96 (Releasing Prisoner without Authority):
Punishment not to exceed that authorized for the offense for which the prisoner was in custody. This means the maximum punishment scales with the seriousness of the prisoner’s offense.
Article 96 (Suffering Escape through Neglect):
Bad-conduct discharge, forfeiture of all pay and allowances, confinement for one year.
Article 97 (Unlawful Detention):
Dishonorable discharge, forfeiture of all pay and allowances, confinement for three years.
Article 97’s three-year maximum reflects the seriousness with which the military views wrongful deprivation of liberty. Confining someone who should be free is a fundamental violation of their rights.
Overlapping Conduct: Can Both Articles Apply?
In unusual circumstances, both articles might be implicated in the same general course of conduct, though not typically for the same act.
Consider a scenario where someone releases Prisoner A (who should be held) and simultaneously detains Person B (who should be free). The release of Prisoner A is Article 96. The detention of Person B is Article 97. Both occur, but they’re different acts against different victims.
More complex is a scenario where someone “releases” a prisoner from proper custody only to immediately place them in improper custody elsewhere. This might involve both articles: the initial release from lawful custody (Article 96) and the subsequent unlawful detention (Article 97).
The Victim’s Perspective
For Article 96, the victim in a sense is the military justice system and the public interest in having prisoners properly confined. The prisoner who escapes isn’t the victim; they’re the beneficiary of the release (though they face their own charges for escape).
For Article 97, the victim is the person unlawfully detained. Their liberty was wrongfully restricted. They suffered direct harm from the accused’s misconduct.
This difference affects how cases are investigated and prosecuted. Article 97 cases often involve testimony from the detained person about the circumstances of their detention. Article 96 cases focus more on the custodial relationship and what the accused did or failed to do.
Defenses
For Article 96 defenses:
Proper authority. The release was actually authorized. Orders existed; procedures were followed.
No custody relationship. The accused wasn’t responsible for the prisoner’s custody.
No negligence. For the negligence variant, the accused exercised due care.
No causation. The accused’s conduct didn’t cause the release or escape.
For Article 97 defenses:
Lawful authority. The detention was actually proper. The accused had authority to detain under the circumstances.
No detention occurred. The victim wasn’t actually detained; their liberty wasn’t restricted.
Mistake of fact. The accused reasonably believed facts that, if true, would have made the detention lawful.
Career and Professional Implications
Both offenses indicate inability to properly exercise custody authority. The military entrusts certain personnel with significant power over others’ liberty. Abusing that power, whether by improperly releasing those who should be held or improperly holding those who should be free, demonstrates unfitness for such responsibility.
For personnel in military police, corrections, or security roles, either conviction effectively ends that career field. The military cannot trust someone who has demonstrated inability to properly manage custody with continued custody responsibilities.
For commanders, Article 97 violations are particularly damaging. Commanders have substantial authority to restrict subordinates’ liberty. Abusing that authority violates the trust placed in command and indicates unfitness for leadership.
Practical Guidance
For those responsible for prisoner custody:
Know your authority. Understand exactly what you can and cannot do regarding release.
Verify release orders. Don’t release prisoners based on informal communications or assumptions.
Maintain security. Don’t let convenience or complacency compromise custody.
Document everything. Proper records protect you if questions arise later.
For those with detention authority:
Know your limits. Understand what conduct justifies detention and what procedures must be followed.
Don’t use detention as punishment. Informal “lockups” or confinement as discipline outside proper channels is illegal.
Correct errors promptly. If you realize a detention was improper, take immediate steps to release the person and document what happened.
When in doubt, consult. Legal advisors and military justice professionals can clarify authority questions before they become criminal matters.
Frequently Asked Questions
If I’m a guard and I’m ordered by a superior to release a prisoner, but I suspect the release isn’t authorized, what should I do?
This is a difficult situation that requires careful judgment. If the order comes through normal channels, from someone with apparent authority to authorize release, and there’s no obvious reason to doubt its legitimacy, complying with the order is generally reasonable. However, if something seems clearly wrong (the order comes from someone who obviously lacks release authority, the circumstances suggest bribery or corruption, the prisoner’s case doesn’t allow for release), you should seek verification through proper channels before acting. Asking for written confirmation, contacting your supervisor, or confirming with the military justice office are appropriate steps. The defense of “following orders” may apply if you reasonably believed the release was authorized, but willful blindness to obvious irregularities won’t protect you. Document your concerns and what steps you took.
Can I be charged under Article 97 if I detained someone briefly while waiting for military police to arrive?
Generally, brief detention pending arrival of authorities is permitted under limited circumstances, similar to civilian “citizen’s arrest” concepts. If you witnessed someone committing an offense and detained them temporarily to prevent escape until proper authorities arrived, this would typically be lawful. However, the detention must be reasonable in duration and manner. Holding someone for hours, using excessive force, or detaining someone when you have no reasonable basis to believe they committed an offense goes beyond lawful limits. If you detain someone based on mistaken belief they committed an offense, your good faith might be relevant, but the mistake should be reasonable under the circumstances. The safest approach is to minimize the detention, summon authorities promptly, and use no more force than necessary to maintain the status quo until help arrives.
What happens if a prisoner was initially lawfully detained but their detention became unlawful (for example, their sentence ended but they weren’t released)?
Continuing to hold someone after their lawful detention ends is unlawful detention under Article 97. The initial lawful authority to detain doesn’t authorize indefinite holding. If a sentence ends, if charges are dismissed, if a court orders release, or if administrative authority to hold expires, continued detention is unlawful. Personnel responsible for the continued detention can face Article 97 charges. This scenario sometimes arises due to administrative errors or communication failures. When it does, the question becomes who is responsible for the failure to release and whether that failure was deliberate or negligent. Deliberate refusal to release when required is clearly criminal. Negligent failure to process release paperwork might result in administrative action or, in serious cases, charges. The detained person may also have civil remedies for the wrongful detention.