New York’s infringement on civil rights reaches a new low with the effective suspension of habeas corpus. The term ‘habeas corpus” is tossed around frequently and many people don’t really understand what it means. In Latin it means “produce the body”. It is the right of a person arrested to be seen by a judge who will determine if the detention of the person is proper under the law.[i] It is a holdover from European and English common law and is enshrined in the US Constitution in Section 9 of Article One. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it"
Federal habeas corpus has been suspended only few times in history. Presidents Lincoln and Grant suspended it during the Civil War and Reconstruction. President Franklin D Roosevelt suspended it during World War II. Following the September 11 attacks, President George Bush tried to avoid habeas corpus by moving detainees to Guantanamo Bay to move them outside US jurisdiction. The Supreme Court overturned his action.[ii]
It is one of the most important safeguards against the abuse of power by the government. Without it, people could be arrested and held forever without the chance to see a judge, a tactic we have all heard of being used by dictatorships and other repressive governments. Seeing the abuse of power coming from the government in suppressing protests, it is not a big leap to see that happening here.
New York law requires that a person arrested be brought before a judge within 24 hours of their arrest. That rule was established in the 1991 case Roundtree v. New York. The Court of Appeals held that detention in excess of 24 hours without explanation is a violation and “arrestees held in custody for more than 24 hours without arraignment are entitled to release unless an acceptable explanation for the delay is given” [iii]
The current perfect storm of things, a pandemic and mass protests, has overwhelmed many, including the police and prosecutor’s offices. On June 2, 2020 the New York Legal Aid Society sought a writ of habeas corpus on behalf of prisoners who had been held in excess of 24 hours, estimated at over 200 people.[iv] New York Supreme Court Justice James Burke ruled that the coronavirus and the mass protests were a valid reason to hold prisoners in excess of 24 hours stating, "This writ is denied. All writs are denied — Brooklyn, Bronx, Manhattan,"[v]
The judge did not say how long the prisoners could be held before they had to be released, in effect suspending habeas corpus and allowing the police to hold people indefinitely. This is giving the police free reign to abuse their power as they have been doing consistently during the protests. It is just unconscionable that the judge would leave this open ended and not give the police a time limit.
The decision has been appealed[vi]
[i] https://criminal.findlaw.com/criminal-procedure/writ-of-habeas-corpus.html
[ii] https://en.wikipedia.org/wiki/Habeas_corpus#United_States
[iii] https://www.law.cornell.edu/nyctap/I91_0035.htm
[iv] https://legalaidnyc.org/wp-content/uploads/2020/06/FINAL-Roundtree_Writ-2.pdf
[v] https://www.law360.com/newyork/articles/1280174/nypd-defeats-bid-to-free-300-jailed-amid-protests
[vi] https://legalaidnyc.org/wp-content/uploads/2020/06/Lazeme-Harris-writ-NOA-050520.pdf
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.