Army commanders’ use of pretrial confinement is widely uneven

This story includes descriptions of sexual assault and physical violence.

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

Also, sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

If you or someone you know has been sexually assaulted, you can receive confidential help by calling the Rape, Abuse & Incest National Network’s 24/7 toll-free support line at 800-656-4673 or visiting its website. You can be connected to a hotline staff member in your area or to the Department of Defense’s Safe Helpline.

Christian Alvarado began to type as he sat alone in an interrogation room at Fort Bliss, a sprawling Army post in El Paso. He’d spent most of the previous seven hours hooked up to a polygraph, answering a military investigator’s questions about an allegation that he’d sexually assaulted a fellow soldier.

His story had changed several times during the interview in late July 2020. The investigator told Alvarado he’d already failed two polygraph tests, then left the room so that the young soldier could type up his account in a sworn statement. With his fingers on the keyboard, Alvarado began describing the night in December 2019 that he spent in the barracks with a female soldier he’d met that day.

“She was drunk and so was I,” Alvarado, an Army private first class, typed on the investigator’s computer. “We had sex, but she passed out.”

He wrote that he’d lied about the encounter being consensual in previous interviews with investigators because he wanted to protect his Army career.

When Alvarado was done with his written admission, the military investigator walked back in the room. He asked Alvarado why he continued to have sex with the woman after she passed out. “I was in the moment,” the 20-year-old soldier replied.

The investigator then asked Alvarado about another allegation against him. An Army chaplain’s assistant had accused him of sexually assaulting her in May 2020 after a house party. Sex with her was “wrong due to how intoxicated she was,” Alvarado said, but he would not agree to a sworn statement about the second allegation because it would just be “icing on the cake.”

Alvarado told the investigator that he’d had sex with 42 women in the past four years, about a quarter of whom were intoxicated at the time. His sexual experiences had become boring and they blurred together, he said, to the point that he struggled to remember specific details about his partners.

At the end of the daylong interrogation, Alvarado’s commanders didn’t place him in detention or under any restrictions beyond the orders he had already received to stay at least 100 feet away from the two women who had accused him of assault, according to records. He was free to leave.

A month later, he sexually assaulted another woman.

Had Alvarado’s case been handled by civilians and not the military, his written admission could have been enough evidence to quickly issue an arrest warrant, according to two lawyers who previously worked for the El Paso County district attorney’s office.

“I would have felt comfortable charging at that point,” said Penny Hamilton, who led the Rape and Child Abuse Unit at the district attorney’s office and later served as an El Paso County magistrate judge. “When you have the offender admitting the sexual act took place and you have the offender admitting that the alleged victim couldn’t have consented because she was passed out, then you have the elements” of a criminal charge.

In Texas’ civilian system, a person charged with sexual assault goes before a magistrate judge, who’d set a bail amount that experts said could easily be in the tens of thousands of dollars. Civilian magistrates and judges use bail to ensure suspects show up at trial. Suspects are released only if they can pay the bond.

The military justice system has no bail. Many decisions about who should be detained for serious crimes before trial are made not by judges but by commanders, who are not required to be trained lawyers.

Recent congressional reforms changed the system, which has long drawn criticism for the extensive discretion commanders wield. While the revisions stripped some of their authority, commanders continue to control various aspects of the judicial process, including deciding whether service members accused of crimes should be detained while awaiting trial, a process called pretrial confinement.

A ProPublica and Texas Tribune investigation into how commanders in the Army, the nation’s largest military branch, use pretrial confinement revealed a system that treats soldiers unevenly and draws little outside scrutiny. Over the coming months, ProPublica and the Tribune will explore how military justice operates, often in vastly different ways than the civilian system.

The news organizations obtained data from the Army on nearly 8,400 courts-martial over the past decade under the Freedom of Information Act. The resulting analysis, the first-of-its-kind, showed that soldiers accused of sexual assault are less than half as likely to be placed in pretrial confinement than those accused of offenses like drug use and distribution, disobeying an officer or burglary.

The analysis showed that, on average, soldiers had to face at least eight counts of sexual offenses before they were placed in pretrial confinement as often as soldiers charged with drug or burglary crimes.

That disparity has grown in the past five years. The rate of pretrial confinement more than doubled in cases involving drug offenses, larceny and disobeying a superior commissioned officer, but it remained roughly the same for sexual assault cases like Alvarado’s, the analysis found.

For instance, the Army opted against pretrial confinement for a staff sergeant who was accused of raping the wife of a soldier in his command at Fort Bliss, while at another post a 19-year-old Texas woman was placed in detention for more than three months for using drugs and mouthing off to commanders.

“Justice that’s arbitrary is not justice,” Col. Don Christensen, a former chief prosecutor for the Air Force, said. “It shouldn’t come down to the whims of a particular commander.”

Army officials defended the system. They said that soldiers accused of violent offenses aren’t necessarily more likely to get pretrial confinement. “The nature of the offense is one factor to consider in a decision to put someone in pretrial confinement, but it is not the sole factor,” said Lt. Col. Brian K. Carr, chief of the operations branch at the Office of the Judge Advocate General’s Criminal Law Division, in an email. Characteristics of individual soldiers and their willingness to follow orders are also important factors, Carr said.

He said that, under military regulations, commanders must first decide whether there’s good reason to believe that a soldier committed a crime and is either likely to flee before trial or engage in serious criminal misconduct. Commanders have to consider if other restrictions, such as directing soldiers to remain in military housing or requiring regular check-ins with superiors, are sufficient to keep them out of trouble. They should also weigh a soldier’s military service record, character, mental condition and any previous misconduct.

In March 2020, months before Alvarado was interviewed about the sexual assault allegations, commanders reprimanded him after El Paso police arrested him for firing an AR-15 outside of his girlfriend’s apartment. Alvarado told police at the time that he was attempting to scare off a pack of coyotes. An El Paso County warrant in the case remains outstanding.

Despite the reprimand and the initial sexual assault allegations, former Fort Bliss spokesperson Lt. Col. Allie Scott said that the conditions to justify placing Alvarado in pretrial confinement were not met. Scott, who recently transferred to another post, declined to clarify. She said Fort Bliss would not comment on internal deliberations.

Nearly a month after Alvarado walked out of the interrogation room at Fort Bliss, an Army captain determined there was probable cause that he committed sexual assault, according to records obtained by ProPublica and the Tribune. In a letter to the news organizations, Alvarado would later say he was innocent but declined to answer specific questions.

The Army’s decision, and the failure to quickly act on it, came too late for Lee, a civilian and the third woman whom he would later be charged with sexually assaulting.

Lee, who agreed to go by her middle name for this story, still relives the moment in late August when Alvarado assaulted her in her living room. He pinned her down on her couch and wrapped his hand around her throat while her two children slept across the house.

She recalls calling a friend and crying weeks later when she learned from military investigators that Alvarado had previously been accused of sexual assault.

“If something had been done sooner, he would have never gotten the chance to hurt me,” Lee said.

A justice system led by military commanders

The U.S. military justice system dates back to the American Revolution. Yet the way in which the system works and how it diverges from the civilian legal process is unknown to many Americans. (About 8% of adults in the U.S. currently serve or have served in the active-duty and reserve military forces.)

The system was created to help commanders keep their fighting forces in line. So, at the start, courts handled only military-specific offenses like desertion or dereliction of duty.

“George Washington needed a means to discipline his troops,” said Rachel E. VanLandingham, a professor at Southwestern Law School in Los Angeles and a former Air Force judge advocate, which is a military attorney. “It was very much a commander’s tool.”

Bail was never part of the military system because service members were often stationed in fortresses or remote, frontier garrisons, where commanders controlled their movements, said Joshua Kastenberg, a professor at the University of New Mexico School of Law and former Air Force judge advocate.

Civilian crimes were not tried at court-martial until the American Civil War, and then only as a way to prosecute Union soldiers who were accused of crimes in Confederate states, Kastenberg said.

For decades after, the military could tackle civilian offenses only during times of war.

Then the first and second world wars exposed a greater number of enlisted men and women to a justice system that was dramatically different from the civilian one. For example, the people representing them at trial were not required to be trained lawyers.

In an effort to bring the military more in line with civilian court practices, Congress developed the Uniform Code of Military Justice in 1950. This was a major turning point, giving the military — and, in turn, commanders — jurisdiction over civilian offenses like murder and sexual assault, not just during wars but in times of peace, Kastenberg said.

In the years since, the military pushed back against limiting commanders’ control. Some military legal experts interviewed by ProPublica and the Tribune maintain pretrial confinement is superior to the civilian bail system because a suspect’s freedom has nothing to do with their ability to pay. Criminal justice experts who oppose bail argue that it criminalizes poverty and penalizes people of color.

Critics of the military justice system say giving commanders authority over who gets detained reinforces an ongoing problem in the military. Commanders are an accused person’s supervisor and have little experience or training to make consequential legal decisions.

Commanders “have convinced themselves that they have some special insight shared by no others that makes them solely qualified to make prosecution decisions and control the justice system,” said Christensen, now president of the nonprofit Protect Our Defenders, an organization that promotes military justice reform.

The most recent congressional push to shield the courts-martial process from commanders’ influence followed the 2020 murder of Vanessa Guillén, an Army specialist who was sexually harassed by a supervisor and then allegedly killed by another soldier at Fort Hood.

Guillén’s death helped build momentum for a long-standing effort by some lawmakers to dramatically reduce commanders’ role in the military justice system. A bill introduced by U.S. Sen. Kirsten Gillibrand, a New York Democrat, proposed stripping commanders of the power to decide whether to prosecute serious offenses and giving that authority to military lawyers.

The military brass pushed back. To remove commanders “from prosecution decisions, process, and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, unit cohesion, trust, and loyalty between commanders and those they lead,” Gen. Mark A. Milley, the chair of the Joint Chiefs of Staff, wrote in a May 2021 letter to Oklahoma Sen. James Inhofe, the top Republican on the Armed Services Committee.

In the end, Congress approved a compromise last year that created a new office of military attorneys with the power to prosecute cases related to some serious crimes such as sexual assault, domestic violence, murder and kidnapping.

Commanders retained prosecutorial control over other offenses, like robbery, assault and distribution of controlled substances.

Under the new law, commanders also held on to authority over other parts of the judicial process, including pretrial confinement. They can consult military attorneys with legal questions, but they are not required to follow that advice. And while a magistrate judge reviews cases in which a person is placed in pretrial confinement, there is no such review when commanders opt against detaining soldiers accused of crimes.

A dangerous person

To understand the way that commanders’ discretion works in practice, consider the case of Randall S. Hughes, a Fort Bliss Army staff sergeant who was accused of raping the wife of one of his soldiers at a Super Bowl party in 2017.

The woman told ProPublica and the Tribune she repeatedly asked that the Army place Hughes in pretrial confinement after it began an investigation. Hughes’ commanders did not. They eventually decided against pursuing the case, citing evidence and advice from military counsel.

Hughes later moved to Joint Base McGuire-Dix-Lakehurst in New Jersey where, in May 2020, his 16-year-old daughter told military investigators that he had sexually assaulted her two months earlier.

Again, he was not detained.

Hughes’ commanders in New Jersey instead directed him to live on post and required him to check in by phone three times a day.

During the investigation into his daughter’s accusation, military law enforcement discovered allegations that years earlier Hughes sexually assaulted one ex-wife and raped another. The latter incident occurred while he was already under investigation for the rape at Fort Bliss. They learned a third ex-wife accused him of strangling her in 2015.

Hughes was again not put into pretrial confinement.

Matt Leonard, an Army spokesperson, said in an email that Hughes’ commanders “took appropriate action” to ensure the staff sergeant showed up at trial and did “not engage in further serious misconduct.” They also issued protective orders for the victims.

In a March 2021 plea deal, Hughes admitted to a number of charges, including raping the woman at the Super Bowl party and one of his ex-wives. He also was convicted of “squeezing” another ex-wife’s neck with his hands. A judge sentenced him to almost 14 years in prison and dishonorably discharged him. He did not plead guilty to sexually assaulting his daughter but admitted to using indecent language with her and pulling her by the hair.

Hughes’ attorney did not respond to an email requesting comment.

Chayla Madsen, Hughes’ first ex-wife and the mother of the daughter who accused him of sexual assault, said she agreed to the plea deal only because military attorneys said it would speed up the judicial process and be better for the victims.

Madsen used to believe the safest place her daughter could be was on a military base. Now she has no faith in a system that failed to take serious legal action against Hughes in 2017 when he was first accused of sexual assault.

“They had every reason to believe he is a dangerous person,” Madsen said.

Serial offenses

Fort Bliss, where Hughes was first accused of sexual assault, uses pretrial confinement significantly less often than the vast majority of Army posts, applying it at a rate of roughly 6% for cases without sexual offenses and 5% for sexual assault cases, according to the news organizations’ analysis.

Just as they had done with Hughes, Fort Bliss commanders similarly decided at various junctures not to detain Alvarado.

They had another opportunity two weeks after he assaulted Lee.

Military investigators guided the 30-year-old mother, who had a brief relationship with Alvarado before the assault, to contact him and see if he would acknowledge what happened on the night of Aug. 26, 2020, when he asked to come over to her house to talk.

While sitting in a room with investigators, Lee texted Alvarado and asked him to explain why he didn’t stop when she told him to.

He apologized.

Lee

Do you even know what you’re apologizing for?

Christian Alvarado

My aggressive behavior.

Lee

Alvarado, it was more than aggressive. You choked me until I almost passed out and left bruises around my neck.

Even when I told you to stop, you still shoved your hand down my pants.

Why didn’t you stop when I told you to?

The two texted for more than an hour. Lee kept pressing even after Alvarado attempted to end the conversation. Then he finally answered.

Christian Alvarado

I choked you and fingered [you].

I don’t want to talk about it.

After the admission, the Army ordered that Alvarado stay 100 feet away from Lee. He also had other restrictions, including a requirement that he check in with commanders seven times a day in person or by phone, text or video call.

Scott, the Fort Bliss spokesperson, said commanders determined Alvarado’s restrictions “based on the information available to them at the time.”

But six attorneys and military law experts expressed surprise that commanders still did not order him into pretrial confinement.

“He’s under investigation for two sexual assaults, he’s been told to leave these people alone and then we have credible evidence that he’s committed another sexual assault,” said Geoffrey S. Corn, a former Army officer and professor at the South Texas College of Law in Houston. “That’s enough to prove to me two things: No. 1, he’s dangerous and, No. 2, he might be a flight risk because he’s not getting the message he has to behave.”

One night, almost a month after the text exchange, Lee called 911 when her 10-year-old son told her that Alvarado had tapped on his bedroom window and said hello, according to a police report and an interview with Lee. Military police arrived quickly but could not locate anyone. Had Alvarado been there, he would have been in violation of the protective order that required him to stay away from Lee.

Scott said neither Fort Bliss investigators nor Alvarado’s commanders knew of the claim because military police files did not mention his name. Records obtained by ProPublica and the Tribune show that Lee shared Alvarado’s name and the fact that she had a protective order against him with a 911 dispatcher.

In late October, two months after Lee was assaulted, the Army formally charged Alvarado with three counts of sexual assault, as well as with strangling Lee and lying to investigators. Still, he was not detained.

By the end of December, Alvarado was in trouble again.

He was arrested for driving drunk during a trip to Arizona, where his family lives. Fort Bliss officials said they were not aware of the arrest because neither Alvarado nor the Scottsdale Police Department notified the post.

Alvarado then missed several required check-ins with commanders. Such failures could trigger pretrial confinement. They didn’t. After a month of missed check-ins, Alvarado’s company commander increased how often he had to contact his superiors and required him to write a 1,000-word essay on “the importance of Army leaders ensuring the safety and well-being of their Soldiers.”

“How long do we need to let a serial predator continue to violate orders and harm people?” said Franklin Rosenblatt, a law professor who previously served as a Fort Bliss judge advocate from 2010 to 2012.

Different treatment

Army officials say that pretrial confinement should be a last resort because it detains soldiers before they’ve been convicted of a crime. But Pvt. Olivia Ochoa’s experience shows how aggressive Army commanders can be even in cases with more minor infractions.

A San Antonio native, Ochoa became interested in military intelligence jobs after meeting a recruiter her senior year of high school. She joined the Army as a promising soldier in August 2020 shortly after graduating and was promoted in rank, according to her recruiter.

The 19-year-old soldier soon began to get in trouble. Months into her Army career, Ochoa was reprimanded for sexual harassment and creating a hostile work environment after she and another soldier were accused of slapping each other’s butts, inner thighs and frequently flirting during formation in Fort Huachuca, Arizona.

The incident, which Ochoa denies, was the first in a series of run-ins with her drill sergeants, ranging from not carrying “the appropriate amount of water” in her water bottle to more serious issues like underage drinking and eating a THC edible.

“Once I knew I was gonna get in trouble no matter how much I tried, I completely stopped trying,” Ochoa said.

By May 2021, one of Ochoa’s drill sergeants recommended that she be released from the Army.

While waiting to be discharged, Ochoa said, she was sexually assaulted by another soldier at an off-post hotel. She initially worried that if she filed a report, the military would delay her release, but after her mental health began deteriorating, she decided to report the assault.

In July, Ochoa was caught with psychedelic mushrooms and what investigators believed to be a vape pen with THC. The Army charged her with drug possession and use.

Her commander placed her under restrictions that, among other things, allowed her to visit only the few buildings on post where she slept, ate and worked out.

Two days later, Ochoa got in trouble for refusing her superiors’ order to go back to bed after she left her room to check on a friend who was being placed in confinement. That was enough for commanders to place her in pretrial confinement the next day.

A military magistrate ordered Ochoa’s release about a week later, determining confinement was “not warranted” because she had not broken her restrictions.

Her freedom was short-lived.

In the week following her release, Ochoa’s commander again placed her in pretrial confinement after she was caught two days in a row at stores she had been barred from visiting, once trying to buy cough medicine she said she planned to take to get high.

Although the Army’s case centered on drug use and possession, Ochoa was ultimately put in pretrial confinement both times for violating superior officers’ orders. Her commanders added seven new counts of disobeying and disrespecting superiors onto her drug case for reasons that included refusing to return to her room and visiting the on-post stores.

Ochoa’s actions showed that she should not be in the Army, but her punishment was excessive, said Rosenblatt, the law professor and former Army judge advocate. He said her case is an example of how pretrial confinement is used in “arbitrary” ways that can often be fueled by a commander’s relationship with the soldier.

Commanders often interpret drug use as jeopardizing the morale or safety of the unit, whereas they tend to view sexual assaults as a conflict between two people, said Aniela Szymanski, a private attorney and Marine Corps Reserve judge advocate.

“I think that’s going to take some time for commanders to grow into having the same knee-jerk reaction to sexual assault offenses as they do to drug offenses,” she said.

Ochoa spent 103 days in pretrial confinement. She stopped eating, barely slept and was losing her hair and eyelashes.

In November, after her initial trial date was pushed back by two months, Ochoa accepted a plea deal. She was sentenced to time served. During the hearing, Ochoa learned Army officials had decided not to pursue her sexual assault case, determining that they could not establish probable cause.

The decision was a surprise to Ochoa and her civilian lawyer, Sean Timmons, who said investigators did not interview key witnesses about the assault. Army officials later agreed to speak with additional people, but they came to the same conclusion and closed the case this year.

“I believe if she was a soldier who they actually liked and wanted to see have a productive career, they probably would have already taken steps to do this investigation properly,” Timmons, a former military attorney, said in an interview. “But because they don’t like her, they’re going to maltreat her and they’re going to do a half-assed job prosecuting him.”

A Fort Huachuca spokesperson said the Army takes sexual assault allegations seriously and conducted a thorough and independent investigation into Ochoa’s case.

“Broken”

In March 2021, more than seven months after Alvarado confessed during his interrogation, he was placed in pretrial confinement.

By then, the allegations of sexual assault against him had drawn national attention. Asia Graham, the soldier who Alvarado acknowledged he sexually assaulted while she was unconscious, died at age 19 after accidentally overdosing on drugs. Before her death, Graham had written a letter to her mother, Nicole Graham, about the pain she felt because the Army had failed to take action against Alvarado.

The publicity around Graham’s case caused two more women to come forward in an interview with the cable news network NewsNation and accuse Alvarado of assaulting them years earlier in Arizona. The women had not previously reported the incidents.

Commanders’ repeated decisions against pretrial confinement, which gave Alvarado the opportunity to assault Lee, did not draw public attention. But Alvarado’s civilian defense attorney last year, Sherry Bunn, told ProPublica and the Tribune that she believed Army leaders were simply reacting to “the press and publicity and the political nature” of Graham’s and Guillén’s deaths when they decided to confine him. Army officials say he was put in pretrial confinement because of the additional allegations.

Nicole Graham said her daughter might still be alive had commanders placed Alvarado in detention earlier. That might have convinced her daughter, who was haunted by the assault, that the Army was taking the case seriously, the mother said.

“I think she would have felt maybe stronger in her recovery and not self-medicated,” she said.

Nicole Graham got the chance to face Alvarado on June 18, 2021, when a military judge found him guilty of sexually assaulting her daughter and Lee, of strangling Lee and of lying to investigators. The judge acquitted him of all other charges, including the sexual assault of the chaplain’s assistant. After the judge’s ruling, Nicole Graham read a statement from the stand about Asia: “The military has let her down.”

The judge sentenced Alvarado to 18 years and three months in a military prison and a dishonorable discharge from the Army. He got credit for the time he spent in pretrial confinement ahead of his trial: 108 days, five days more than Ochoa.

Because of the dishonorable discharge and the length of his sentence, Alvarado’s case is under automatic appeal. A decision is still pending. He remains in custody.

The fact that Alvarado is behind bars gives Lee little comfort. The attack changed her.

She still has nightmares about the presence of someone in her home, walking up the steps to her bedroom and beating on the door.

Life was not perfect before the assault. She’d lost a pregnancy before having her two children. Two marriages to Army soldiers ended. But she still had a life. She used to enjoy socializing, inviting friends over for game nights or going out around town.

Now, she stays home most of the time.

She’s thought about cutting her long hair, because attackers can grab you by the hair.

She no longer likes to be touched, especially on her face. Even her young daughter loving on her can sometimes cause her to panic.

“I’m a little more broken than I used to be.”

Help The Texas Tribune and ProPublica report on the military justice system

We’re looking into how the military investigates service members accused of crimes, intersects with the civilian justice system and treats cases that do not make it to courts-martial. Guide us to important stories.

When you join us at The Texas Tribune Festival Sept. 22-24 in downtown Austin, you’ll hear from changemakers who are driving innovation, lawmakers who are taking charge with new policies, industry leaders who are pushing Texas forward and so many others. See the growing speaker list and buy tickets.