Cracks in a foundation are dangerous because they admit destructive forces. Water seeps in, freezing weather comes along, and frost heave advances the disintegration. Should any particular measure become law now, we might not notice. Novel coronaviruses don’t come around very often, after all. But what of the damage done to the foundation? It’s not simply the measure itself but its effect, momentum, and effort into the future.
Emergency Power Grab
“The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.”
Should the pandemic mean arrestees lose their rights? The Department of Justice (DOJ) is looking to help the courts in this crisis. The “help,” however, seems to violate a core tenet in our criminal law. In an exclusive at Politico, Betsy Woodruff Swan details the DOJ wish list of proposals to be included in COVID-19 legislation. Among them is the suspension of habeas corpus rights.
“The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to ‘any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings’ … The request raised eyebrows because of its potential implications for habeas corpus — the constitutional right to appear before a judge after arrest and seek release.”
Habeas Corpus Keeps Us Free
A writ of habeas corpus — which means to “produce the body” — is an order issued by a court of law to an individual or agency holding someone in custody. The writ requires that jailers deliver the prisoner and present him or her before the court so a judge can decide whether that prisoner is held lawfully or not. And it gives judges the power to release the prisoner from custody if not. This is a right that all Americans have.
The right to petition a court for a writ of habeas corpus is not part of the federal code of regulations, and it does not come from Congress. It is a right bestowed directly by the U.S. Constitution to individuals to present evidence to a court showing that they have been wrongly or illegally imprisoned. During the Constitutional Convention, suspension of habeas corpus powers was hotly contested. As reference website ThoughtCo. put it:
“Maryland delegate Luther Martin passionately argued that the power to suspend the right to writs of habeas corpus could be used by the federal government to declare any opposition by any state to any federal law, ‘however arbitrary and unconstitutional’ it might be, as an act of rebellion.”
The Founders settled on the following for Article 1, Section 9: “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.”
Habeas rights are a check that courts have over the executive and legislature, all in service of liberty, and that’s why they must be jealously guarded. Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, lambasted the proposal by saying, “[S]o that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.” Only the courts should be able to determine when habeas rights may be suspended. They don’t need “help” from other branches of government to guide them.
Read more from Scott D. Cosenza.
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