Habeas Corpus

The e-Advocate Quarterly Magazine Isaiah 61:1 | Psalm 146:7 Hebrews 13:3 | Isaiah 42:7

Habeas Corpus

“Helping Individuals, Organizations & Communities Achieve Their Full Potential”

Vol. IX, Issue XXXVIX – Q-4 October | November | December 2023

The Advocacy Foundation, Inc. Helping Individuals, Organizations & Communities Achieve Their Full Potential

Habeas Corpus

“Helping Individuals, Organizations & Communities Achieve Their Full Potential

1735 Market Street, Suite 3750 Philadelphia, PA 19102

| 100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303

John C Johnson III, Esq. Founder & CEO (878) 222-0450 Voice | Fax | SMS

www.TheAdvocacyFoundation.org

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Biblical Authority ______

Isaiah 61:1 (NIV) The Year of the LORD's Favor 1 The Spirit of the Sovereign LORD is on me, because the LORD has anointed me to preach good news to the poor. He has sent me to bind up the brokenhearted, to proclaim freedom for the captives and release from darkness for the prisoners,

Psalm 146:7 7 He upholds the cause of the oppressed and gives food to the hungry. The LORD sets prisoners free,

Hebrews 13:3 3 Remember those in prison as if you were their fellow prisoners, and those who are mistreated as if you yourselves were suffering.

Isaiah 42:7 7 to open eyes that are blind, to free captives from prison and to release from the dungeon those who sit in darkness.

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Table of Contents Inner-Cities Strategic Revitalization Planning

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Biblical Authority I.

Introduction

II.

Arbitrary Arrest & Detention

III.

International Habeas Corpus

IV.

Universal Declaration of Human Rights

V.

The European Convention – Article 5

VI.

The Habeas Corpus Act of 1679 in England

VII. The Fifth Amendment – US Constitution VIII. The Habeas Corpus Restoration Act of 2007

Attachments A. Ten Things You Should Know About Habeas Corpus B. Federal Habeas Corpus Review – Bureau of Justice Statistics C. Application for Writ of Habeas Corpus D. Petition for Writ of Habeas Corpus by A Person In State Custody

Copyright © 2015 The Advocacy Foundation, Inc. All Rights Reserved.

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Introduction Habeas Corpus is a recourse in law that may be applied before a court in cases where the unlawful detention or imprisonment of a person is suspected.

A Writ of Habeas Corpus, also known as the Great Writ, is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom').

The Great Writ Habeas corpus is sometimes called "The Great Writ". It is a legal instrument first guaranteed following the signing of the Magna Carta. Its literal meaning is "show the body". Its purpose is to prevent the state from holding prisoners in extrajudicial detention. When a writ of habeas corpus is filed with a court in countries which inherit elements of their judicial system from the English system of Justice the state has to show that there is a legal basis for the captive's detention—usually that they are suspected of having broken a law.

Habeas Corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the process has been temporarily or permanently suspended, in all of a government's jurisdictions or only some, because of what might be construed by some government institutions as a series of events of such relevance to the government as to warrant a suspension; in more recent times, such events may have been frequently referred to as "national emergencies."

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".

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The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

From Latin habeas, 2nd person singular present subjunctive active of habere, "to have", "to hold"; and corpus, accusative singular of corpus "body". In reference to more than one person, habeas corpora.

Literally the phrase means "you may have the body". The complete phrase habeas corpus ad subjiciendum means "you may have the person for the purpose of subjecting him/her to (examination)". These are the opening words of writs in 14th century Anglo-French documents requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.

Latin Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.

English We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.

Examples Britain VICTORIA by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting.

We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of in this behalf; and have there then this Writ.

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United States United States of America, Second Judicial Circuit, Southern District of New York, ss.: We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.

Similarly Named Writs The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. These include:     

Habeas corpus ad deliberandum et recipiendum: a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. ("Extradition") Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered.

Habeas corpus ad prosequendum: a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court.

Habeas corpus ad respondendum: a writ ordering return to allow the prisoner to "answer" to new proceedings before the court.

Habeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of "testifying".

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Origins in England Habeas Corpus originally stems from the Assize of Clarendon, a re-issuance of rights during the reign of Henry II of England. In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in Magna Carta.

This charter declared that: No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.

William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1772), where the black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered "The air of England has long been too pure for a slave, and every man is free who breathes it". During the Seven Years' War and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service. The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation.

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an Act of Parliament, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.

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The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.

With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review.

The Writ, however, maintains its vigour, and was held by the UK Supreme Court to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the Writ justifying the detention of the claimant.

Equivalent remedies Poland In 1430 King Władysław II Jagiełło of Poland granted the Privilege of Jedlnia, which proclaimed, Neminem captivabimus nisi iure victum ("We will not imprison anyone except if convicted by law"). This revolutionary innovation in civil libertarianism gave Polish citizens due process-style rights that did not exist in any other European country for another 250 years.

Originally, the Privilege of Jedlnia was restricted to the nobility (the szlachta), but it was extended to cover townsmen in the 1791 Constitution. Importantly, social classifications in the Polish-Lithuanian Commonwealth were not as rigid as in other European countries; townspeople and Jews were sometimes ennobled. The Privilege of Jedlnia provided broader coverage than many subsequently enacted habeas corpus laws because Poland's nobility constituted an unusually large percentage of the country's total population, which was Europe's largest. As a result, by the 16th century, it was protecting the liberty of between 500 thousand and a million Poles.

Roman-Dutch law In South Africa and other countries whose legal systems are based on Roman-Dutch law, the interdictum de homine libero exhibendo is the equivalent of the writ of habeas corpus. In South Africa it has been entrenched in the Bill of Rights, which provides in section 35(2)(d) that every detained person has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.

World habeas corpus In the 1950s, American lawyer Luis Kutner began advocating an international writ of habeas corpus to protect individual human rights. In 1952 he filed a petition for a "United Nations Writ Page 12 of 66

of Habeas Corpus" on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia. Alleging that Czechoslovakia had violated Oatis's rights under the United Nations Charter and the Universal Declaration of Human Rights and that the United Nations General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights. The Commission forwarded the petition to Czechoslovakia, but no other United Nations action was taken. Oatis was released in 1953. Kutner went on to publish numerous articles and books advocating the creation of an "International Court of Habeas Corpus".

International Human Rights Standards Article 3 of the Universal Declaration of Human Rights provides that "everyone has the right to life, liberty and security of person". Article 5 of the European Convention on Human Rights goes further and calls for persons detained to have the right to challenge their detention, providing at article 5.4: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

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Arbitrary Arrest & Detention Arbitrary Arrest and Arbitrary Detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law.

Arbitrarily arresting or detaining persons contradicts rule of law established in democracies as well as Habeas Corpus and is thereafter illegal in those regimes. In practice in the 2000s (decade), arbitrary arrest or detention (the definitions of these terms vary between different national jurisdictions) is typically tolerated by the legal system for a short duration, of a few hours up to a few days, in most democracies, especially in response to political street demonstrations. It is often a characteristic of dictatorships or police states, which may also engage in forced disappearance.

Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held (people also get abused while in jail) incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial courts. Many individuals who are arbitrarily arrested and detained suffer physical or psychological torture during interrogation, as well as extrajudicial punishment and other abuses in the hands of those detaining them.

Arbitrarily depriving an individual of their liberty is strictly prohibited by the United Nations' division for human rights. Article 9 of the 1948 Universal Declaration of Human Rights decrees that "no one shall be subjected to arbitrary arrest, detention or exile"; that is, no individual, regardless of circumstances, is to be deprived of their liberty or exiled from their country without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law. As well, the International Covenant on Civil and Political Rights specifies the protection from arbitrary arrest and detention by the Article 9.

Administrative Detention | Counter-Terrorism | Immigration Control Administrative Detention is arrest and detention of individuals by the state without trial, usually for security reasons. A large number of countries, both democratic and undemocratic, resort to administrative detention as a means to combat terrorism, to control illegal immigration, or to protect the ruling regime.

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Unlike criminal incarceration (imprisonment) imposed upon conviction following a trial, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus – they seek to determine whether a defendant committed an offense in the past – the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future. It is meant to be preventive in nature rather than punitive (see preventive detention). The practice has been criticized by human rights organizations as a breach of civil and political rights.

Counter-Terrorism Administrative detentions are defined in the law of many of the world's states. In democratic countries using administrative detention as a counter-terrorism measure, the rationale given by its proponents is that legal existing systems are ill suited to handle the specific challenges presented by terrorism. Proponents of administrative detention maintain that criminal law's reliance on defendant rights and strict rules of evidence cannot be used effectively to remove the threat of dangerous terrorists. Some of the reasons often used to support this claim are that the information used to identify terrorists and their plots may include extremely sensitive intelligence sources and methods, the disclosure of which during trial would undermine future counter-terrorism operations. It is also claimed that the conditions under which some suspected terrorists are captured, especially in combat zones, make it impossible to prove criminal cases using normal evidentiary rules. Proponents also maintain that criminal prosecution is designed primarily to punish past behavior, thus it is deliberately skewed in favor of defendant, in order to assure that few, if any, innocents are punished. Counter-terrorism, on the other hand, aims to prevent future action, and thus requires a system that is weighed more heavily toward reducing the possibility of future harm, by ensuring that no guilty party will go free.

The Laws of War are also seen by the proponents as inadequate. These laws allow the capture of enemy fighters, and also allow holding them for the duration of hostilities without trial.

However, these laws grew out of the need to regulate combat between professional armies accountable to a sovereign state, who were engaged in combat of possibly lengthy, but finite duration. Attempting to apply these laws to terrorists who are intermingled with a civilian population and accountable to no-one opens the possibility of indefinite detention without trial, combined with a substantial likelihood of error.

Opponents of administrative detention challenge the above assumptions. While acknowledging the need to protect the sources and methods used to obtain sensitive intelligence, they maintain that existing laws, such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act (CIPA), successfully balance the need to protect sensitive information, including the sources and means of intelligence gathering, with defendants' fair trial rights. They point to the historical record of prosecutors who were able to obtain convictions against terrorists on the basis of existing laws. Opponents maintain that in essence, administrative detention is a form of collective punishment. Since it does not require proof of individual guilt, it attributes to all members of a group the actions of a few.

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Immigration Control Many

countries utilize administrative detention to hold illegal immigrants – those arriving at a country's borders without proper authorization – as an interim step to either deportation or the obtainment of proper legal status. Immigration detention is controversial because it presents a clash between traditional notions of individual liberty and the territorial sovereignty of States. Comparative studies on administrative detention practices of different countries found that those experiencing large-scale influxes of illegal migrants by sea (such as the USA and Australia) typically have the most draconian systems. Proponents of administrative detention for illegal immigrants claim that detention is required since these immigrants have not committed any crime for which they could be prosecuted under existing laws, and that allowing them to await their potential deportation while not in custody runs a risk of their absconding. Opponents maintain that alternatives to detention exist, and that such alternatives are preferable because they do not violate personal liberty, as well as being less of a financial burden to the state. Among the alternatives suggested are supervised release to a Non-Governmental Organization (NGO), the release into the custody of a private citizen who will guarantee the immigrant's participation in immigration hearings, and "Open detention" centers with mandatory reporting requirements.

Protection of The Ruling Regime In many non-democratic countries, administrative detention is used by the ruling regime to suppress dissent and sanction opponents of the government. In Asia in particular, administrative detention was first introduced by the British and French colonial authorities prior to and during World War II. Created as a mechanism to control political dissent, it has ironically survived and made its way into the law books of the now-independent former colonies, who legitimized its use against their own political opponents in their constitutions. In many cases, they were and codified as "emergency measures" or "internal security" acts. Bangladesh, India, Malaysia, Myanmar, Pakistan, Singapore and Sri Lanka are notable examples of such former colonies who hold political prisoners under administrative detention which has its legal roots in British colonial practices. Vietnam is an example where administrative detention was widely used by the Page 17 of 66

French colonial authorities in the 1930s, to arrest those suspected of Communist activities. Postindependence, the now-ruling Communist authorities have employed very similar means to detain those suspected of ``counter-revolutionary" offenses. Some of these political prisoners, such as Aung San Suu Kyi in Myanmar, have become known worldwide due to the detention, and their cause is championed by human rights organizations.

Instances of Administrative Detention Armenia Armenia has been criticized by Human Rights Watch for not fully reforming the legal framework it inherited from the former Soviet Union, and failing to bring its administrative detention system into accord with prevailing international norms. During the 2003 Presidential elections, Armenian police arbitrarily applied the Code of Administrative Offenses, under which administrative detention is authorized, to lock up dozens of opposition activists and supporters for periods of up to fifteen days.

Australia Like many other countries experiencing large scale illegal immigration, such as Canada and the United States, Australia has a system of mandatory administrative detention for illegal immigrants, or asylum seekers who arrive at its shores without proper visas. The legal basis for this system is found in Australia's Migration Act 1958 (Cth), which authorized the indefinite detention of an unlawful non-citizen who can not be deported immediately. Human Rights Watch criticized this Australian policy, claiming it seriously contravenes Australia's obligations to non-citizens, refugees and asylum seekers under international human rights and refugee law.

Additionally, opposition to the system on humanitarian grounds came from a range of religious, community and political groups including the National Council of Churches, Amnesty International, Australian Democrats, Australian Greens and Rural Australians for Refugees

Brazil Administrative detentions in Brazil are admitted only for members of the military. Any member of the Brazilian Armed Forces may be imprisoned if found to be repeatedly in violation of the Military Disciplinary Regulations (Regulamento Disciplinar) by his or her superiors. Each military branch has issued a list of "transgressions" in their Disciplinary Regulations. The harshest punishment of this kind, in the Brazilian Army, is a 30-day imprisonment penalty.

Notwithstanding, members of the Brazilian Armed Forces under administrative detention may be granted a habeas corpus by the justice system to deliver them from imprisonment. They retain their full rights as citizens.

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Burma In an overview that describes Burma as "one of the most repressive countries in Asia", Human Rights Watch quotes a Red Cross report that states that in 2002, there were approximately 3,500 detainees in Burma, of which 1,300 are political prisoners, including parliament members.

Burmese authorities often extend the detention of prisoners who have already served their prison sentences, by placing them under administrative detention. This practice is used even with elderly and infirm prisoners. One of the most notable cases of this practice was the detention of Aung San Suu Kyi.

China The use of administrative detention in China has been commonplace since before 1949. At that time, it was used primarily against minor offenders as well as against opium addicts, prostitutes, vagrants and those considered to be insane. Since the 1978 legal reforms in China, the public security organs (gong'an jiguan), primarily the police, hold administrative detention powers which are used alongside the state's criminal justice system. Administrative detention is used against subjects that are viewed by the ruling regime as "socially undesirable", in order to maintain public order, social stability and political stability of the ruling regime. This target group includes prostitutes and their clients, drug addicts, political dissenters and petty criminals, who perform legal misdemeanors that are not serious enough for criminal prosecution. Custody and repatriation (Chinese: 收容遣送; Pinyin: shōuróng qiǎnsòng) was also used until 2003 for people, especially peasants, who did not have required papers.

There are three main forms of these administrative detentions: "detention for education" ("Shourong jiaoyu"), coercive drug rehabilitation ("Qiangzhi jiedu"), and "reeducation through labor" ("Laodong jiaoyang"). In addition, administrative detention is used for several internal security reasons, such as detention under the Security Administrative Punishments Law ("Xingzheng juliu"); Administrative detention for questioning of suspects ("Luizhi panwen"); and detention of juvenile offenders in work-study schools ("Shourong jiaoyang") The use of administrative detention in China has been criticized by international human rights organizations, as well as by domestic groups. These criticisms maintain that the police often abuse their power, that the execution of these powers is at the complete discretion of the police, and that there are no legal constraints placed on their execution.

Egypt Egypt's Emergency Law No. 162 of 1958 authorizes the government to suspend basic civil liberties by declaring a state of emergency. Such a state of emergency has been in force almost continuously since 1967. Acting under this law, Egyptian authorities have administratively detained individuals who were suspected of membership in banned organizations such as the Muslim Brotherhood, as well as individuals engaged in peaceful demonstrations expressing opposition to the war in Iraq or support for the Palestinian uprising. Human Rights Watch has criticized this practice as the use of emergency legislation for 'repression of public dissent'.

Amnesty International charges that relatives of political prisoners in Egypt have been Page 19 of 66

administratively detained solely because of their family relationship. The Egyptian government refuses to disclose how many administrative detainees are held, but human rights groups estimate that 16,000-20,000 are held in detention without charge.

Ireland Ireland utilizes administrative detention to control illegal immigration. Beginning in 1996, a legal framework was put in place to authorize the use of administrative detention for this purpose. This legal framework includes the Refugee Act, 1996, the Immigration Acts, 1999, 2003 and 2004, and the Illegal Immigrants (Trafficking) Act 2000. According to official Irish government statistics, in 2003-2004, a total of 2,798 people were administratively detained for immigration-related reasons, two thirds of whom were held in prison for periods of longer than 51 days. The vast majority (more than 90%) of detainees are held in one of two Dublin prisons, Cloverhill Prison (male detainees) and the DĂłchas Centre at Mountjoy Prison (female detainees).

The rest are held in prisons as well as border control (Garda SĂ­ochĂĄna) stations.

The Council of Europe and human rights organizations have criticized the overcrowded conditions in which the detainees are held, as well as the fact that detainees are held together with convicted criminals. In addition, Human Rights Consultants have reported that Irish law does not protect the rights of detainees, by not informing them of their right to challenge the legality of their detention, nor recognizing their rights to have access to a lawyer and to have access to medical care.

Israel The legal basis for Israel's use of Administrative Detention is the British Mandate 1945 Law on Authority in States of Emergency as amended in 1979. Administrative detention is often used for indefinite detention of Palestinian political prisoners. It seems to be mainly used by Israel against individuals not engaged in violent activities. Administrative detention is also used in cases where the available evidence consists of information obtained by the security services (particularly the Shin Bet), and where a trial would reveal sensitive security information, such as the identities of informers or infiltrators.

Although it is commonly applied to alleged Palestinian militants, it has occasionally been applied to Jewish Israeli citizens, including Jewish right-wing public-figures and activists (e.g. in the aftermath of the assassination of Yitzhak Rabin) and in more recent years sometimes to settlers for short periods.

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Within Israel, the Defense Minister has the authority to issue Administrative Detention orders for up to 6 months in cases where there is a reasonable chance that the person harms the security of the state. The same Minister has the authority to renew such orders. Likewise, the Chief of the General Staff can issue such orders, but valid for only 48 hours. Law enforcement authorities have to show cause within 48 hours (in a hearing behind closed doors). Administrative Detention orders can be appealed to the District Court and, if denied there, to the Supreme Court of Israel.

The District Court can annul such orders if it finds the administrative detention occurred for reasons other than security (e.g., common crimes, or the exercise of freedom of expression).

Overall supervisory authority on the application of the relevant law rests with the Minister of Justice.

Within the West Bank and Gaza Strip, any Israeli district army commander can issue an administrative detention order, and the order can be appealed at the Israeli district military court, or, if denied there, at the Supreme Court. Here too, an administrative detention order is valid for at most six months, but can be renewed by the appropriate authority. Israel refers its use of administrative detention in the occupied territories to Article 78 of the Fourth Geneva Convention 1949, which states that "If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."

According to Addameer, Israel held 285 Palestinians in administrative detention in June 2012.

Eighteen of them were members of parliament, out of 4,706 political prisoners. According to B'Tselem, as of April 2012, about 308 Palestinians were being held under administrative detention by the Israel Prisons Service (IPS) and statistics on those held by the IDF were unavailable. According to IPS figures for December 2012, 178 Palestinians were being held in administrative detention (without charge or trial). As of December 2013, B'Tselem reported that 140 Palestinians were being held under administrative detention by the IPS.

Jordan The Crime Prevention Law (No. 7 of 1954) in Jordan authorizes administrative detention.

Authority resides with Jordan's provincial governors and the administrators of provincial subdivisions. The law allows the detention of anyone "about to commit a crime or to assist in its commission", people who "'habitually' steal, shelter thieves, or fence stolen goods" or anyone deemed to present "a danger to the people" if they are not detained. Although the Crime Prevention Law does not provide a legal basis for the use of administrative detention for "protective custody", the law was routinely used until 2007 to detain women at risk of violence, honor killing by family members for example. The use of the law in this way has been criticized by the United Nations and Human Rights Watch. In 2007, the government opened the Wifaq Center for women at risk of violence, and in 2008, women who had been in protective custody were transferred from prison to the center, although the practice of sending women to prison for "protective custody" using the Crime Prevention Law has not completely ceased. Detained women cannot obtain their own release, the transfer must be approved by the family members who have threatened the women. According to Jordan's National Centre for Human Rights, administrative detention was used in 11,870 cases in 2008, 16,050 in 2009, 12,345 in 2010, and Page 21 of 66

11,345 in 2011. The law does not provide for independent or court review of the administrative detention decisions although detainees can petition the High Court of Justice.

Syria Legislative Decree No. 51 of 22 December 1962 introduced the State of Emergency Law, which came into force on 8 March 1963, that allowed the security forces to hold suspects in preventive detention without judicial oversight for indefinite periods.

United Kingdom The UK has maintained many forms of administrative detention over the years. The most recent forms were a series of Acts intended to introduce a form of administrative detention to Northern Ireland under the auspices of the Prevention of Terrorism (Temporary Provisions) Act 1974. This Act allowed the security forces to apprehend and detain persons suspected of terrorist activities without trial for an unlimited period. The introduction of the Act led directly to the creation of internment camps (particularly Long Kesh (the Maze) and the prison ship HMS Maidstone where suspects were detained, some for protracted periods. The Act of 1974 was amended a number of times during the late 20th and early 21st century, the most recent incarnation being the Prevention of Terrorism Act 2005 which introduced the concept of the control order, itself a more politically palatable means of limiting the freedom of a suspect without the need to provide a court of law with prima facie evidence of any wrongdoing.

United States The United States currently uses indefinite detention without trial - known under various names as internment, civil commitment, preventive detention, or administrative detention - to hold people who fall within a few narrow categories, including the mentally ill (involuntary commitment), and "sexually violent predators", though the right of Habeas Corpus still applies, and some determinations regarding mental illness and sexual dangerousness are made by juries.

During World War II, the United States detained over 100,000 Japanese Americans in internment camps; smaller numbers of German Americans and Italian Americans were interned.

The United States also utilizes administrative detention as a counter-terrorism measure, and as a means to control illegal immigration. There are approximately 100,000 persons in removal proceedings at any one time, and about 31,000 held in detention during these proceedings.

Following the September 11 attacks, the USA PATRIOT Act was passed. The Act expanded the authority of law enforcement agencies to use administrative detention for the stated purpose of fighting terrorism in the United States and abroad. Under the Act, any person (citizen or alien) suspected of terrorist connections may be administratively detained for up to seven days without the benefit of an habeas corpus proceeding. The Attorney General, at his discretion, may extend this seven-day period to six months, and this extension itself may be renewed indefinitely – legally creating the possibility of lifetime imprisonment without ever facing charges. One of the Page 22 of 66

criticisms of the PATRIOT Act is that the Attorney General's decision is not subject to any judicial review, unlike the situation in other democratic countries which have similar administrative detention laws.

As part of the War on Terror, and particularly during and after the War in Afghanistan, U.S. forces captured hundreds of terrorists, who were subsequently detained without trial at the Guantanamo Bay detention camp. The U.S. initially refused to grant these detainees prisoner of war status, holding that they were illegal enemy combatants because they did not meet the requirements set down by the Third Geneva Convention. Of the 775 detainees incarcerated at Guantanamo, 420 have been released without charge, and only one has been tried and convicted.

U.S. authorities claim that they intend to put 60-80 more on trial.

Criticism by human rights groups

Administrative detention practices have come under severe criticism, with critics claiming that it breaches human rights. Amnesty International believes that administrative detention breaches Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which "makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law". The ICCPR does allow a government, under narrow circumstances, such as a public emergency threatening the life of a nation, to temporarily derogate from its obligation not to engage in arbitrary detention.

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Amnesty International is also concerned that prisoners of conscience are being "held solely for the non-violent exercise of their right to freedom of expression and association".

The United Nations has created the Working Group on Arbitrary Detention on the issue. One of the issues the group has focused on is the determination whether a detention is arbitrary or not – which is not as clear-cut in the case of administrative detention as it is in the case of criminal arrest. The group has proposed certain guidelines to aid in such determination. For example, it has suggested that any deprivations of liberty that violate the freedom of association must be deemed arbitrary. Based on these guidelines, the group has condemned countries who have used long-term administrative detention when the detainees were held for the mere fact of belonging to an "illegal organization."

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International Habeas Corpus

Australia The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.

In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.

Canada Habeas corpus rights are part of the British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in the Constitution Act 1982, under Section Ten of the Charter of Rights and Freedoms. This states that "Everyone has the right on arrest or detention... (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau, who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and the internment of German-Canadians, Italian Canadians and of Japanese Canadians during the Second World War. The writ was suspended Page 26 of 66

for several years following the Battle of Fort Erie (1866) during the Fenian Rising, though the suspension was only ever applied to suspects in the Thomas D'Arcy McGee assassination.

The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy (see May v. Ferndale Institution). Under the Criminal Code of Canada the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.

France A fundamental human right in the "1789 Declaration of the Rights of Man" drafted by Lafayette in cooperation with Thomas Jefferson, the guarantees against arbitrary detention are enshrined in the French Constitution and regulated by the Penal Code. The safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries. The French system of accountability prescribes severe penalties for ministers, police officers and civil and judiciary authorities who either violate or fail to enforce the law.

"Article 7 of [1789] Declaration also provides that "No individual may be accused, arrested, or detained except where the law so prescribes, and in accordance with the procedure it has laid down"... The Constitution further states that "No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law." Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that "anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

France and the United States played a synergistic role in the international team, led by Eleanor Roosevelt, which crafted the Universal Declaration of Human Rights. The French judge and Nobel Peace Laureate RenĂŠ Cassin produced the first draft and argued against arbitrary detentions. RenĂŠ Cassin and the French team subsequently championed the Habeas-Corpus provisions enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Germany Germany has constitutional guarantees against improper detention and have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.

Article 104, paragraph 1 of the German Constitution provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules.

Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article Page 27 of 66

104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.

Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Constitution which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Constitution have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Constitution while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.

In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Constitution which provides as follows: "Should any person's right be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts."

India The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. For example, the Karnataka High Court heard in October 2009 a habeas corpus petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a madrasa in Malapuram town. Usually, in most other jurisdictions the writ is directed at police authorities. The extension to non-state authorities has its grounds in two cases: the 1898 Queen's Bench case of Ex Parte Daisy Hopkins, wherein the Proctor of Cambridge University did detain and arrest Hopkins without his jurisdiction, and Hopkins was released [23] and that of Somerset v Stewart, in which an African slave whose master had moved to London was freed by action of the writ.

The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary.

The habeas writ was used in the Rajan case, a student victim of torture in local police custody during the nationwide Emergency in India in 1976.On 12 March 2014, Subrata Roy's counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

Ireland In the Republic of Ireland access to a similar remedy to habeas corpus is guaranteed by Article 40.4 of the 1937 constitution. This guarantees "personal liberty" to each individual and outlines a detailed procedure. It does not mention the Latin term but includes the English phrase "produce the body". The constitution provides that this procedure is not binding on the Defence Forces during a state of war or armed rebellion.

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The term 'habeas corpus' as used in the Rules of the Superior Courts does not refer to the constitutional procedure outlined below but to provisions still operable of the Habeas Courpus Acts- The State (Ahern) v Cotter [1982] IR 188 The expression 'order of Habeas Corpus' does not include an order made pursuant to Article 40, section 4 of the Constitution. Order 84 r 1(2) RSC Article 40.4.2째 states that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The full text of the provision is as follows: Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. [Italics added] The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the remedy was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.

Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as he wished. Since the Second Amendment, a prisoner has had only the right to apply to one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that if the High Court believes someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.

In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.

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Italy In Italy the principle of habeas corpus is enshrined in Article 13 of the Constitution, which states: "Personal liberty is inviolable. No one may be detained, inspected, or searched nor otherwise subjected to any restriction of personal liberty except by order of the Judiciary stating a reason and only in such cases and in such manner as provided by the law. In exceptional circumstances and under such conditions of necessity and urgency as shall conclusively be defined by the law, the police may take provisional measures that shall be referred within 48 hours to the Judiciary for validation and which, in default of such validation in the following 48 hours, shall be revoked and considered null and void. Any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished. The law shall establish the maximum duration of preventive detention."

Malaysia In Malaysia, the remedy of habeas corpus is guaranteed by the federal constitution, although not by name. Article 5(2) of the Constitution of Malaysia provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.

New Zealand In New Zealand habeas corpus may be invoked against the government or private individuals. In 2006, a child was allegedly kidnapped by his maternal grandfather after a custody dispute. The father began habeas corpus proceedings against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and so was imprisoned for contempt of court. She was released when the grandfather came forward with the child in late January 2007.

Pakistan Issuance of a writ is an exercise of an extraordinary jurisdiction of the superior courts in Pakistan. A writ of habeas corpus may be issued by any High Court of a province in Pakistan.

Article 199 of the 1973 Constitution of the Islamic Republic of Pakistan, specifically provides for the issuance of a writ of habeas corpus, empowering the courts to exercise this prerogative.

Subject to the Article 199 of the Constitution, "A High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an Page 30 of 66

unlawful manner." The hallmark of extraordinary constitutional jurisdiction is to keep various functionaries of State within the ambit of their authority. Once a High Court has assumed jurisdiction to adjudicate the matter before it, justiciability of the issue raised before it is beyond question. The Supreme Court of Pakistan has stated clearly that the use of words "in an unlawful manner" implies that the court may examine, if a statute has allowed such detention, whether it was a colorable exercise of the power of authority. Thus, the court can examine the malafides of the action taken.

The Philippines In the Bill of Rights of the Philippine constitution, habeas corpus is guaranteed in terms almost identically to those used in the U.S. Constitution. in Article 3, Section 15 of the Constitution of the Philippines states that "The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it."

In 1971, after the Plaza Miranda bombing, the Marcos administration, under Ferdinand Marcos, suspended habeas corpus in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party for the events of August 21. Many considered this to be a prelude to Martial Law. After widespread protests, however, the Marcos administration decided to reintroduce the writ. In December 2009, habeas corpus was suspended in Maguindanao as the province was placed under martial law. This occurred in response to the Maguindanao massacre.

Scotland The Parliament of Scotland passes a law to have the same effect as habeas corpus in the 18th century. This now known as the Criminal Procedure Act 1701 c.6. It was originally called "the Act for preventing wrongful imprisonment and against undue delays in trials". It is still in force although certain parts have been repealed.

Spain In 1526 the Fuero Nuevo established a form of habeas corpus in the territory of the SeĂąorĂ­o de Vizcaya. The present Constitution of Spain states that "A habeas corpus procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested". The statute which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on her or his own or through a third person, allege that she or he is imprisoned unlawfully and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the custodian holding the prisoner does not have the legal authority, that the prisoner's constitutional rights have been violated, or that he has been subjected to mistreatment. The judge may then request additional information if needed and may issue a habeas corpus order at which point the custodian has 24 hours to bring the prisoner before the judge.

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United States The United States inherited habeas corpus from the English common law. In England the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9.

This states that "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." Section 9 is under Article 1 which states, "legislative Powers herein granted shall be vested in the Congress of the United States..."

The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.

Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus during the Civil War and Reconstruction for some places or types of cases.

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The Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled. The full text is published by the United Nations on its website.

The Declaration consists of thirty articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions, and other laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966, the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights. In 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.

Precursors During World War II, the Allies adopted the Four Freedoms—freedom of speech, freedom of religion, freedom from fear, and freedom from want—as their basic war aims. The United Nations Charter "reaffirmed faith in fundamental human rights, and dignity and worth of the human person" and committed all member states to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion".

When the atrocities committed by Nazi Germany became apparent after the war, the consensus within the world community was that the United Nations Charter did not sufficiently define the rights to which it referred. A universal declaration that specified the rights of individuals was necessary to give effect to the Charter's provisions on human rights.

Creation and drafting The Declaration was commissioned in 1946 and was drafted over two years by the Commission on Human Rights. The Commission consisted of 18 members from various nationalities and political backgrounds. The Universal Declaration of Human Rights Drafting Committee was chaired by Eleanor Roosevelt, who was known for her human rights advocacy.

Canadian John Peters Humphrey was called upon by the United Nations Secretary-General to work on the project and became the Declaration's principal drafter. At the time, Humphrey was Page 33 of 66

newly appointed as Director of the Division of Human Rights within the United Nations Secretariat. The Commission on Human Rights, a standing body of the United Nations, was constituted to undertake the work of preparing what was initially conceived as an International Bill of Rights. The membership of the Commission was designed to be broadly representative of the global community, served by representatives from the following countries: Australia, Belgium, Byelorussian Soviet Socialist Republic, Chile, Republic of China, Egypt, France, India, Iran, Lebanon, Panama, Philippines, United Kingdom, United States, Union of Soviet Socialist Republics, Uruguay, and Yugoslavia. Well-known members of the Commission included Eleanor Roosevelt of the United States (who was the Chairperson), René Cassin of France, Charles Malik of Lebanon, P. C. Chang of the Republic of China, and Hansa Mehta of India.

Humphrey provided the initial draft which became the working text of the Commission.

According to Allan Carlson in Globalizing Family Values, the Declaration's pro-family phrases were the result of the Christian Democratic movement's influence on Cassin and Malik.

Adoption On 10 December 1948, the Universal Declaration was adopted by the General Assembly by a vote of 48 in favor, none against, and eight abstentions (the Soviet Union, Ukrainian SSR, Byelorussian SSR, People's Federal Republic of Yugoslavia, People's Republic of Poland, Union of South Africa, Czechoslovakia, and the Kingdom of Saudi Arabia). Honduras and Yemen— both members of UN at the time—failed to vote or abstain.[15] South Africa's position can be seen as an attempt to protect its system of apartheid, which clearly violated any number of articles in the Declaration. The Saudi Arabian delegation's abstention was prompted primarily by two of the Declaration's articles: Article 18, which states that everyone has the right "to change his religion or belief"; and Article 16, on equal marriage rights. Eleanor Roosevelt attributed the abstention of the Soviet bloc nations to Article 13, which provided the right of citizens to leave their countries.

The following countries voted in favor of the Declaration: Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, China, Colombia, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Siam, Sweden, Syria, Turkey, United Kingdom, United States, Uruguay, Venezuela.

Despite the central role played by the Canadian John Peters Humphrey, the Canadian Government at first abstained from voting on the Declaration's draft, but later voted in favor of the final draft in the General Assembly.

Structure The underlying structure of the Universal Declaration was introduced in its second draft, which was prepared by René Cassin. Cassin worked from a first draft, which was prepared by John Peters Humphrey. The structure was influenced by the Code Napoléon, including a preamble and introductory general principles.

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Cassin compared the Declaration to the portico of a Greek temple, with a foundation, steps, four columns, and a pediment. Articles 1 and 2 are the foundation blocks, with their principles of dignity, liberty, equality, and brotherhood. The seven paragraphs of the preamble—setting out the reasons for the Declaration—represent the steps. The main body of the Declaration forms the four columns. The first column (articles 3–11) constitutes rights of the individual such as the right to life and the prohibition of slavery. Articles 6 through 11 refer to the fundamental legality of human rights with specific remedies cited for their defense when violated. The second column (articles 12–17) constitutes the rights of the individual in civil and political society (including such things as Freedom of movement). The third column (articles 18–21) is concerned with spiritual, public, and political freedoms such as freedom of association, thought, conscience, and religion. The fourth column (articles 22–27) sets out social, economic, and cultural rights. In Cassin's model, the last three articles of the Declaration provide the pediment which binds the structure together. These articles are concerned with the duty of the individual to society and the prohibition of use of rights in contravention of the purposes of the United Nations Organisation.

International Human Rights Day The adoption of the Universal Declaration is a significant international commemoration marked each year on 10 December, and is known as Human Rights Day or International Human Rights Day. The commemoration is observed by individuals, community and religious groups, human rights organizations, parliaments, governments, and the United Nations. Decadal commemorations are often accompanied by campaigns to promote awareness of the Declaration and human rights. 2008 marked the 60th anniversary of the Declaration, and was accompanied by year-long activities around the theme "Dignity and justice for all of us".

Significance and Legal Effect Significance The Guinness Book of Records describes the Declaration as the world's "Most Translated Document".[22] In its preamble, governments commit themselves and their people to progressive measures which secure the universal and effective recognition and observance of the human rights set out in the Declaration. Eleanor Roosevelt supported the adoption of the Declaration as a declaration rather than as a treaty because she believed that it would have the same kind of influence on global society as the United States Declaration of Independence had within the United States. In this, she proved to be correct. Even though it is not legally binding, the Declaration has been adopted in or has influenced most national constitutions since 1948. It has also served as the foundation for a growing number of national laws, international laws, and treaties, as well as for a growing number of regional, national, and sub-national institutions protecting and promoting human rights.

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Legal effect While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter, which is binding on all member states. For this reason, the Universal Declaration is a fundamental constitutive document of the United Nations. In addition, many international lawyers believe that the Declaration forms part of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. The 1968 United Nations International Conference on Human Rights advised that the Declaration "constitutes an obligation for the members of the international community" to all persons. The Declaration has served as the foundation for two binding UN human rights covenants: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The principles of the Declaration are elaborated in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture, and many more. The Declaration continues to be widely cited by governments, academics, advocates, and constitutional courts, and by individuals who appeal to its principles for the protection of their recognised human rights.

Reaction Praise The Universal Declaration has received praise from a number of notable people. The Lebanese philosopher and diplomat Charles Malik called it "an international document of the first order of importance", while Eleanor Roosevelt—first chairwoman of the Commission on Human Rights (CHR) that drafted the Declaration—stated that it "may well become the international Magna Carta of all men everywhere." In a speech on 5 October 1995, Pope John Paul II called the Declaration "one of the highest expressions of the human conscience of our time". In a statement on 10 December 2003 on behalf of the European Union, Marcello Spatafora said that the Declaration "placed human rights at the centre of the framework of principles and obligations shaping relations within the international community."

Criticism

Islamic Countries Most Islamic countries have signed the Universal Declaration of Human Rights. However, in 1948, Saudi Arabia abstained from the ratification vote on the Declaration, claiming that it violated Sharia law. Pakistan—which had signed the declaration—disagreed and critiqued the Saudi position. In 1982, the Iranian representative to the United Nations, Said Rajaie-Khorassani, said that the Declaration was "a secular understanding of the Judeo-Christian tradition" which could not be implemented by Muslims without conflict with Sharia. On 30 June 2000, members of the Organisation of the Islamic Conference (now the Organisation of Islamic Cooperation) Page 36 of 66

officially resolved to support the Cairo Declaration on Human Rights in Islam, an alternative document that says people have "freedom and right to a dignified life in accordance with the Islamic Shari'ah", without any discrimination on grounds of "race, colour, language, sex, religious belief, political affiliation, social status or other considerations". Turkey—a secular state—signed the Declaration in 1948.

A number of scholars in different fields have expressed concerns with the Declaration's alleged Western bias. These include Irene Oh, Abdulaziz Sachedina, Riffat Hassan, and Faisal Kutty.

Hassan has argued: What needs to be pointed out to those who uphold the Universal Declaration of Human Rights to be the highest, or sole, model, of a charter of equality and liberty for all human beings, is that given the Western origin and orientation of this Declaration, the "universality" of the assumptions on which it is based is – at the very least – problematic and subject to questioning.

Furthermore, the alleged incompatibility between the concept of human rights and religion in general, or particular religions such as Islam, needs to be examined in an unbiased way.

Irene Oh argues that one solution is to approach the issue from the perspective of comparative (descriptive) ethics.

Kutty writes: "A strong argument can be made that the current formulation of international human rights constitutes a cultural structure in which western society finds itself easily at home ... It is important to acknowledge and appreciate that other societies may have equally valid alternative conceptions of human rights." On the other hand, others have written that some of these "cultural arguments" can go so far as to undermine the very nature of human freedom and choice, the protection of which is the purpose of the UN declaration. For example, typical versions of Sharia law forbid Muslims from leaving Islam under the penalty of capital punishment. Islamic legal scholar Faisal Kutty argues that existing blasphemy laws in Muslim countries are actually un-Islamic and are a legacy of colonial rule. Mohsen Haredy, an Islamic scholar, states that Muslim countries have their own views of Sharia and blasphemies are the internal issues of those countries.

Ironically, a number of Islamic countries that as of 2014 are among the most resistant to UN intervention in domestic affairs, played an invaluable role in the creation of the Declaration, with countries such as Syria and Egypt having been strong proponents of the universality of human rights and the right of countries to self-determination.

"The Right to Refuse to Kill" Groups such as Amnesty International and War Resisters International have advocated for "The Right to Refuse to Kill" to be added to the Universal Declaration. War Resisters International has stated that the right to conscientious objection to military service is primarily derived from—but not yet explicit in—Article 18 of the UDHR: the right to freedom of thought, conscience, and religion.

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Steps have been taken within the United Nations to make this right more explicit, but —to date (2015)— those steps have been limited to less significant United Nations documents. Sean MacBride—Assistant Secretary-General of the United Nations and Nobel Peace Prize laureate— has said: "To the rights enshrined in the Universal Declaration of Human Rights one more might, with relevance, be added. It is 'The Right to Refuse to Kill'."

Bangkok Declaration During the lead up to the World Conference on Human Rights held in 1993, ministers from Asian states adopted the Bangkok Declaration, reaffirming their governments' commitment to the principles of the United Nations Charter and the Universal Declaration of Human Rights.

They stated their view of the interdependence and indivisibility of human rights and stressed the need for universality, objectivity, and non-selectivity of human rights. However, at the same time, they emphasized the principles of sovereignty and non-interference, calling for greater emphasis on economic, social, and cultural rights—in particular, the right to economic development over civil and political rights. The Bangkok Declaration is considered to be a landmark expression of the Asian values perspective, which offers an extended critique of human rights universalism.

Organizations promoting the UDHR

International Federation for Human Rights The International Federation for Human Rights (FIDH) is nonpartisan, nonsectarian, and independent of any government, and its core mandate is to promote respect for all the rights set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

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Amnesty International In 1988, director Stephen R. Johnson and 41 international animators, musicians, and producers created a 20-minute video for Amnesty International to celebrate the 40th Anniversary of the Universal Declaration. The video was to bring to life the Declaration's 30 articles.

Amnesty International celebrated Human Rights Day and the 60th anniversary of the Universal Declaration all over the world by organizing the "Fire Up!" event.

Unitarian Universalist Service Committee The Unitarian Universalist Service Committee (UUSC) is a non-profit, nonsectarian organization whose work around the world is guided by the values of Unitarian Universalism and the Universal Declaration of Human Rights. It works to provide disaster relief and promote human rights and social justice around the world.

Quaker United Nations Office and American Friends Service Committee The Quaker United Nations Office and the American Friends Service Committee work on many human rights issues, including improving education on the Universal Declaration of Human Rights. They have developed a Curriculum to help introduce High School students to the Universal Declaration of Human Rights.

American Library Association In 1997, the council of the American Library Association (ALA) endorsed Article 19 from the Universal Declaration of Human Rights. Along with Article 19, Article 18 and 20 are also fundamentally tied to the ALA Universal Right to Free Expression and the Library Bill of Rights. Censorship, the invasion of privacy, and interference of opinions are human rights violations according to the ALA.

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The European Convention – Article 5 The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe.

Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.

The Convention has several protocols, which amend the convention framework.

Convention Articles As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.

Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions.

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Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).

Article 5 - liberty and security Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court.

Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.

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The Habeas Corpus Act of 1679 in Europe The Habeas Corpus Act 1679 is an Act of the Parliament of England (31 Cha. 2 c. 2) passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, a procedural device to force the courts to examine the lawfulness of a prisoner's detention in order to safeguard individual liberty and thus to prevent unlawful or arbitrary imprisonment.

Earlier and subsequent history The Act is often wrongly described as the origin of the writ of habeas corpus. For example the BBC reported in 2005 that because of growing concerns that "kings would whimsically intervene on matters of detention" the writ "was enshrined in law in 1679." But the writ of habeas corpus had existed in England for at least three centuries before and traces its origin back to the Magna Carta in 1215, whose article 39 reads: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."[3] The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816 and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.

Content In criminal matters other than treason and felonies, the act gave prisoners or third parties acting on their behalf the right to challenge their detainment by demanding from the Lord Chancellor, Justices of the King's Bench, and the Barons of the Exchequer of the jurisdiction a judicial review of their imprisonment. The act laid out certain temporal and geographical conditions under which prisoners had to be brought before the courts. Jailors were forbidden to move prisoners from one prison to another or out of the country to evade the writ. In case of disobedience jailers would be punished with severe fines which had to be paid to the prisoner.

Parliamentary history The Act came about because the Earl of Shaftesbury encouraged his friends in the Commons to introduce the Bill where it passed and was then sent up to the House of Lords. Shaftesbury was the leading Exclusionist—those who wanted to exclude Charles II's brother James, Duke of York Page 44 of 66

from the succession—and the Bill was a part of that struggle as they believed James would rule arbitrarily. The Lords decided to add many wrecking amendments to the Bill in an attempt to kill it; the Commons had no choice but to pass the Bill with the Lords' amendments because they learned that the King would soon end the current parliamentary session.

The Bill went back and forth between the two Houses, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each side—those voting for and against— appointed a teller who stood on each side of the door through which those Lords who had voted "aye" re-entered the House (the "nays" remained seated). One teller would count them aloud whilst the other teller listened and kept watch in order to know if the other teller was telling the truth. Shaftesbury's faction had voted for the motion, so they went out and re-entered the House.

Gilbert Burnet, one of Shaftesbury's friends, recorded what then happened: Lord Grey and Lord Norris were named to be the tellers: Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so, a very fat lord coming in, Lord Grey counted him as ten, as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported that they that were for the Bill were in the majority, though indeed it went for the other side: and by this means the Bill passed.

The clerk recorded in the minutes of the Lords that the "ayes" had fifty-seven and the "nays" had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.

The King arrived shortly thereafter and gave Royal Assent before proroguing Parliament. The Act is now stored in the Parliamentary Archives.

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The Fifth Amendment of the US Constitution The Fifth Amendment to the United States Constitution is part of the Bill of Rights and protects against a person being compelled to be a witness against themselves in a criminal case. Taking the Fifth is a colloquial term for invoking the privilege that allows a witness to decline to answer questions that might incriminate them, without penalty or it counting against them. A defendant can not be compelled to become a witness at their own trial, but if they do testify they are not entitled to the privilege and inferences can be drawn from a refusal to answer questions. The Amendment requires that felonies be tried only upon indictment by a grand jury. Federal grand juries can force people to take the witness stand, but defendants in those proceedings have Fifth Amendment privilege until they choose to answer any question.

The grand jury is a pre-constitutional common law institution, and a constitutional fixture in its own right exclusively embracing common law. The process applies to the states to the extent that the states have incorporated grand juries and/or common law. Most states have an alternative civil process. "Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming [p688] majority of the States."

Branzburg v. Hayes (No. 70-85) 1972. The Amendment also provides several trial protections, including the right against self-incrimination (held to also apply to custodial interrogations and before most government bodies) as well as the right to be tried only once ("double jeopardy") in federal court for the same offense. The Amendment also has a Due Process Clause (similar to the one in the 14th Amendment) as well as an implied equal protection requirement (Bolling v.

Sharpe). Finally, the Amendment requires that the power of eminent domain be coupled with "just compensation" for those whose property is taken.

Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Infamous Crime Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia, an extreme punishment under Roman law by which a citizen was deprived his citizenship.

In United States v. Moreland, 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime.

In Mackin v. United States, 117 U.S. 348 (1886), the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary.'", while it later in Green v. United States 356 U.S. 165 (1957), stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year".

Therefore an infamous crime is one that is punished by imprisonment for over one year. Susan Brown, a former defense attorney and Professor of Law at the University of Dayton School of Law, concluded: "Since this is essentially the definition of a felony, infamous crimes translate as felonies."

Grand Jury Grand juries, which return indictments in many criminal cases, are composed of a jury of peers and operate in closed deliberation proceedings; they are given specific instructions regarding the law by the judge. Many constitutional restrictions that apply in court or in other situations do not apply during grand jury proceedings. For example, the exclusionary rule does not apply to certain evidence presented to a grand jury; the exclusionary rule states that evidence obtained in violation of the Fourth, Fifth or Sixth amendments cannot be introduced in court. Also, an individual does not have the right to have an attorney present in the grand jury room during hearings. An individual would have such a right during questioning by the police while in custody, but an individual testifying before a grand jury is free to leave the grand jury room to consult with his or her attorney outside the room before returning to answer a question.

Currently, federal law permits the trial of misdemeanors without indictments. Additionally, in trials of non-capital felonies, the prosecution may proceed without indictments if the defendants waive their Fifth Amendment right.

Grand jury indictments may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121 U.S. 1 (1887), the Supreme Court held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985) partly reversed Ex parte Bain; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.

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The Grand Jury Clause of the Fifth Amendment does not protect those serving in the armed forces, whether during wartime or peacetime. Members of the state militia called up to serve with federal forces are not protected under the clause either. In O'Callahan v. Parker, 395 U.S. 258 (1969), the Supreme Court held that only charges relating to service may be brought against members of the militia without indictments. That decision was overturned in 1987, when the Court held that members of the militia in actual service may be tried for any offense without indictments.

The grand jury indictment clause of the Fifth Amendment has not been incorporated under the Fourteenth Amendment. This means that the grand jury requirement applies only to felony charges in the federal court system. While many states do employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries, and many (though not all) have replaced them with preliminary hearing.

Custodial Interrogation The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers.

Originally, at common law, even a confession obtained by torture was admissible. However, by the eighteenth century, common law in England provided that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. The Supreme Court has repeatedly overruled convictions based on such confessions, in cases such as Brown v. Mississippi, 297 U.S. 278 (1936).

Law enforcement responded by switching to more subtle techniques, but the courts held that such techniques, even if they do not involve physical torture, may render a confession involuntary and inadmissible. In Chambers v. Florida (1940) the Court held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced. In Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington, the Court held that an "unfair and inherently coercive context" including a prolonged interrogation rendered a confession inadmissible.

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Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been advised of his rights.

The Court held, "the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement before being questioned as to the specifics of the crime.

As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Before any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."

The warning to which Chief Justice Earl Warren referred is now called the Miranda warning, and it is customarily delivered by the police to an individual before questioning.

Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under "custodial" circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in "custody." That determination of "reasonableness" is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but neither is such a presence required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), the Court held that "a state-court decision that failed to mention a 17-year-old's age as part of the Miranda custody analysis was not objectively unreasonable". In her concurring opinion Justice O'Connor wrote that a suspect's age may indeed "be relevant to the 'custody' inquiry"; the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina where they ruled that "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test" The questioning does not have to be explicit to trigger Miranda rights. For example, two police officers engaging in a conversation designed to elicit an incriminating statement from a suspect Page 50 of 66

would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.

A confession not preceded by a Miranda warning where one was necessary cannot be admitted as evidence against the confessing party in a judicial proceeding. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility, to "impeach" the witness, even if it had been obtained without the warning.

In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 5–4 on June 21, 2004 that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police where a state's stop and identify statutes obligate disclosure of such information.

In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that criminal suspects must now unambiguously invoke their right to remain silent. Unless and until the suspect actually states that they are relying on that right, their subsequent voluntary statements can be used in court and police can continue to interact with (or question) them. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked their rights. Furthermore, a voluntary reply even after lengthy silence can be construed as implying a waiver.

Salinas v. Texas – Silence at Trial Is Not Evidence of Guilt The Supreme Court extended the standard from Berghuis v. Thompkins in Salinas v. Texas in 2013, holding that a suspect's silence in response to a specific question posed during an interview with police when the suspect was not in custody and the suspect had been voluntarily answering other questions during that interview could be used against him in court where he did not explicitly invoke his Fifth Amendment right to silence in response to the specific question. Of the five justices who concluded that the suspect's silence could be used against him in these circumstances, Justices Alito, Roberts and Kennedy concluded that the defendant's Fifth Amendment claim failed because he did not expressly invoke the privilege. The other two Justices, Thomas and Scalia, concluded that the defendant's claim would fail even if he had invoked the privilege, on the theory that the prosecutor's comment at the trial—regarding the defendant's silence in response to a question during the police interview—did not compel the defendant to give self-incriminating testimony. The Court stated that there was no "ritualistic formula" necessary to assert this privilege, but that a person could not do so "by simply standing mute." If an individual fails to invoke his right, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.

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The Habeas Corpus Restoration Act of 2007 A bill, provisionally called the Habeas Corpus Restoration Act of 2007, S. 185, passed the United States Senate Judiciary Committee on Thursday, June 7, 2007.

The bill was sponsored by Democratic Senator Patrick Leahy and (formerly) Republican Senator Arlen Specter. Specter joined the Democrats in supporting the bill, which the Committee passed on a vote of 11 to 8, without debate. The bill would restore the right for Guantanamo captives to access the US court system under the principle of habeas corpus, a right that had been stripped from them by the Military Commissions Act of 2006.

A version of the bill has been introduced in the House of Representatives (H.R. 1416) by Jerrold Nadler (D-NY) and Jane Harman (D-CA).

On June 29, 2007, the Supreme Court agreed to hear outstanding habeas corpus, opening up the possibility that they might overturn some or all of the Military Commissions Act. The Act was attached, as an amendment, to a Defense bill. On September 19, 2007, the Senate voted on a cloture motion for including the Habeas Corpus Restoration Act as an amendment to the FY 2008 Defense Department Authorization bill. The final vote was 56-43, just four votes short of overriding the Republican filibuster. Every Democrat voted for the bill as well as six Republicans. Those Republicans were Sen. Chuck Hagel (R-Neb.), Richard Lugar (R-Ind.), Gordon Smith (R-Ore.), Olympia Snowe (R-Maine), John Sununu (R-N.H.), and Arlen Specter Page 53 of 66

(R-Penn.), who sponsored the bill. The only non-Republican who voted against the bill was Sen. Joseph Lieberman (I-Conn.).

Sen. Patrick Leahy (D-Vt.) stated that the Senate's passage of the Military Commissions Act, which suspended habeas corpus for detainees, "calls into question the United States' historic role of defender of human rights in the world. It accomplishes what opponents could never accomplish on the battlefield, whittling away our own liberties."

Guantanamo Bay The detainees at the United States Guantanamo Bay detention camps, in Cuba have had over 200 writs of habeas corpus submitted on their behalf.

Initially the Bush Administration asserted that the Guantanamo detainees didn't qualify for any of the rights and protections of detainees held in the USA (in fact, that the detainees didn't qualify for any of the human rights laid down in the Geneva Conventions), because the Guantanamo Bay Naval Base is not on US territory.

This executive branch assertion was challenged before the judicial branch.

The Center for Constitutional Rights took a lead role in helping to organize the activities of lawyers willing to offer their services, pro bono, to the Guantanamo detainees.

Submitting writs of habeas corpus was made more difficult at first, because part of the Bush detainee policy was to keep the identity of the Guantanamo captives a secret. A writ has to be submitted by a "next friend". Some of the detainees had family who would have authorized American lawyers to submit writs on their behalf, but they had no way of contacting them. Some of the detainees and their relatives are totally illiterate. Other detainees' families had no idea where they were, had no idea that they were in Guantanamo. Some of the detainees reported that they were punished for asking for legal assistance.

Rasul v. Bush In the summer of 2004 the United States Supreme Court ruled on the habeas corpus submission Rasul v. Bush, determining that the court had jurisdiction over Guantanamo, and that detainees had a right to an impartial tribunal to challenge their detention under habeas corpus. It was a landmark decision in detainee rights. A related decision was Hamdi v. Rumsfeld (2004), which ruled that United States citizens detained as suspected enemy combatants had the right to habeas corpus challenge of their detention.

Detainee Treatment Act of 2005 The Detainee Treatment Act of 2005 prohibited US military and intelligence personnel from treating detainees in ways inconsistent with Armed Forces regulations. But it also restricted Page 54 of 66

Guantanamo detainees from filing new writs of habeas corpus. Additionally, the act did not close off the habeas corpus submission that were already in the works.

Hamdan v. Rumsfeld In Hamdan v. Rumsfeld (2006), the Supreme Court ruled that the Bush Presidency lacked the Constitutional authority to create the Guantanamo military commissions as a system separate from the existing federal and military justice systems, and ruled that the CSRTs and military commissions were unconstitutional. It said that only Congress could authorize such a system.

Military Commissions Act of 2006 In addition to authorizing military commissions similar to those the Supreme Court overturned the Military Commissions Act of 2006 was intended to close off all the remaining writs of habeas corpus.

The Supreme Court and the Military Commissions Act On June 29, 2007 the Supreme Court agreed to hear outstanding habeas corpus, opening up the possibility that they might overturn some or all of the Military Commissions Act.

The Supreme Court Rules on Boumediene v. Bush On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that the Guantanamo detainees were entitled to the protection of the United States Constitution. Justice Anthony Kennedy, writing for the majority, described the CSR Tribunals as "inadequate", and wrote:

The proposed Habeas Corpus Restoration Act of 2007 Senators Patrick Leahy and Arlen Specter have proposed Habeas Corpus Restoration Act of 2007, to restore access to habeas corpus to the Guantanamo detainees. Debate began on the bill on September 17, 2007. It has been attached, as an amendment, to a Defense bill.

Boumediene v. Bush On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that detainees had the right to access the US judicial system, and that those aspects of the Detainee Treatment Act and Military Commissions Act of 2006 that restricted them to the system at Guantanamo was unconstitutional. As a result, many habeas corpus cases that had been stayed after passage of the MCA were refiled.

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References 1. http://en.wikipedia.org/wiki/Habeas_corpus 2. http://en.wikipedia.org/wiki/Arbitrary_arrest_and_detention 3. http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights 4. http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights 5. http://en.wikipedia.org/wiki/Article_5_of_the_European_Convention_on_Human_Rights 6. http://en.wikipedia.org/wiki/Habeas_Corpus_Act_1679 7. http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution 8. http://en.wikipedia.org/wiki/Habeas_Corpus_Restoration_Act_of_2007 9. http://en.wikipedia.org/wiki/Habeas_corpus_petitions_of_Guantanamo_Bay_detainees 10. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CDkQFj AC&url=http%3A%2F%2Fresearch.policyarchive.org%2F8750.pdf&ei=mtvTVIqIJoilg wTlyIMg&usg=AFQjCNHLS4sz4foOlGosRU9tzvZpgnolag 11. http://www.bjs.gov/content/pub/pdf/FHCRCSCC.PDF 12. http://www.georgiacourts.org/aoc/selfhelp/forms/Writ%20of%20Habeas.pdf 13. http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO241.pdf

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Attachment A Ten Things You Should Know About Habeas Corpus

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ABOUT THE BRENNAN CENTER FOR JUSTICE The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to redistricting reform, from access to the courts to presidential power in the fight against terrorism.

A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.

ABOUT THE BRENNAN CENTER’S LIBERTY AND NATIONAL SECURITY PROJECT The Brennan Center initiated its Liberty and National Security project two years ago to foster better public understanding of the importance of accountability, transparency, and checks-and-balances in the formulation and implementation of national security policy. We have since been at the forefront of advocating for sound, rights-respecting policy prescriptions based on broad public participation and informed discussion. Our staff engages in a spectrum of public education, legislative advocacy, litigation and scholarly activity.

ABOUT THE AUTHOR Jonathan Hafetz is Litigation Director of the Liberty and National Security Project at the Brennan Center. He is actively involved in post-9/11 litigation involving detainee rights and other national security issues, and is lead counsel in several leading detention cases. An expert on habeas corpus, Mr. Hafetz has authored numerous scholarly and popular articles on the subject and frequently serves as an expert commentator. He is writing a book on post-9/11 detentions to be published by NYU Press. He can be contacted at: jonathan.hafetz@nyu.edu.

© 2007. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http://creativecommons.org).

It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web page is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint.

TEN THINGS YOU SHOULD KNOW ABOUT HABEAS CORPUS

Introduction: The writ of habeas corpus protects individuals against unlawful exercises of state power. Since prerevolutionary American history, habeas has guaranteed people seized and detained by the government the right to question the grounds for their detention. It has been available to citizens, non-citizens, slaves, alleged spies, and alleged enemies alike. Habeas is so fundamental to America that the Framers wrote the writ into the Constitution. Indeed habeas is the only common law remedy enshrined in the Constitution.

Twice in the past two years, however, Congress has passed statutes limiting habeas rights for a single class of prisoners. The Detainee Treatment Act of 2005 (“DTA”)1 and the Military Commissions Act of 2006 (“MCA”)2 limit federal courts’ jurisdiction to hear petitions filed by foreign nationals detained as “enemy combatants.” More, these suspensions are permanent – not limited to a timebound, immediate emergency.

These two statutes were passed amid a swirl of confusion and misinformation about habeas corpus – what it is, who uses it, what role it plays in our constitutional order, and why it is important. Is habeas a neat trick by which America’s enemies can out get out of jail and back to the business of undermining our country?

Or are the hundreds of men who have been held, without charge, simply asking for a meaningful hearing on the legality of their imprisonment?

This white paper seeks to explain facts and to correct misperceptions. Once policymakers and the public understand habeas corpus, they will see why it is essential to preventing abuses of executive power, preserving America’s values, and giving the fight against terrorism the legitimacy it needs to succeed.

Bills to restore habeas corpus have already been introduced in both houses of Congress. Ongoing lawsuits challenging the legality of the MCA and DTA are making their way through the courts. But Congress should not wait for the outcome of what will no doubt be more protracted court battles. Lawmakers should act now to repeal the recent habeas-stripping provisions of the Military Commissions and Detainee Treatment Acts and restore habeas to its rightful, historic, and fundamental place in American law.

Ten things you should know about Habeas Corpus 1.

Habeas Corpus Is A Cornerstone Of American Law.

Habeas corpus traces its roots to 1215 and the signing of the Magna Carta. It was designed to keep kings from using power in an unchecked and arbitrary way. Habeas, simply put, is a means for a person detained by the state to require that the government demonstrate to a neutral judge that there is a legal and factual basis for his detention.

The Founders fought a revolution against the kind of excessive and arbitrary executive action habeas prevents.

In the Declaration of Independence, they objected to King George III’s abuse of his detention power.3 In the Federalist Papers, Alexander Hamilton declared habeas corpus a “bulwark” of individual liberty, calling secret imprisonment the most “dangerous engine of arbitrary government.”4 That government power demanded a legal check was, to the Framers, “self-evident.” So, at the Constitutional Convention in Philadelphia, no one debated whether to include habeas in the Constitution. The delegates instead discussed only what conditions, if any, could ever justify suspension of the writ.5 With unmistakably clarity, Article 1, Section 9 of the Constitution enshrines habeas:

“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.”6

Habeas corpus has been suspended on only the rarest of occasions in American history and only temporarily.

It was suspended twice during the Civil War, at a time when Washington, D.C. was surrounded by Confederate Virginia to the west and mobs in Maryland threatened to cut off supplies and troops to the capitol. It was also suspended after the Civil War when armed insurrectionists made it impossible for courts to function in the South; decades later, in the early 1900s, during an armed rebellion in the Philippines; and one final time in 1941 in Hawaii, immediately after Pearl Harbor.7 Each time, Congress responded to an present and immediate emergency. Each time, Congress specifically limited suspension to the duration of the emergency that necessitated it. And, each time, Congress made a determination that the public safety required suspension of this most fundamental right.

In short, habeas is at the core of America’s laws and Constitution. It has rarely been suspended, and then only in the face of an active, outright insurrection. Repealing it, therefore, is not a casual act. Permanent suspension of habeas corpus departs radically from the course of American history and the intentions of those who wrote the Constitution and established our laws.

2.

Post 9/11 Legislation Creates Unprecedented Restrictions

On Habeas Rights.

Are the recent statutes similar to the earlier restrictions on habeas corpus? Unfortunately, no. They are far more dramatic incursions on this core constitutional right.

First, the Executive has never before today claimed the power to permanently deny detainees basic rights.

Second, the Executive has never sought to deny habeas rights to a singled-out class of people. The Detainee Treatment and Military Commissions Acts eliminate the writ of habeas corpus for individuals unilaterally designated “enemy combatants” by the President.

Third, the Executive has never before claimed the power to eliminate habeas corpus without finding that the public safety required it.

In common law, habeas corpus , (Latin: [We command that] you have the body) is the name of a legal action or

The President’s interprewrit by means of which detainees can tation of the statutes seek relief from unlawful imprisonment. extends far beyond even what Congress intended.

Historically, the writ of habeas In passing the habeascorpus has been an instrument for stripping provisions of the MCA and DTA, safeguarding individual freedom lawmakers sought to prevent habeas petitions against arbitrary state action. from those detained at Guantanamo Bay and elsewhere outside the United States. Now, the Bush Administration claims these provisions go further, potentially depriving even legal immigrants within this country of habeas corpus. If true, this would mean U.S. officials could pick a man off the street anywhere in the United States and imprison him as an “enemy combatant” for years without any right to challenge his detention before a federal judge.

In fact, government officials have sought to do precisely that. In June of 2003, for example, the President designated as an “enemy combatant” 41-year old Ali Saleh Kahlah al-Marri, a Qatari national, who arrived in the United States, with his wife and five children, on a student visa to study at Bradley University in Peoria, Illinois.8 Though Mr. al-Marri was first arrested on fraud-related charges, the charged were dropped when, weeks before his trial was scheduled to commence, the President declared him an “enemy combatant.” For the last four years, Mr. al-Marri has been detained indefinitely without charge and in solitary confinement at a military prison in South Carolina. Now, the government argues, the MCA prevents Mr. al-Marri even from invoking habeas corpus to contest his potentially lifelong imprisonment.9 The MCA and DTA restrict habeas rights in an unprecedented way. Earlier laws imposed procedural limitations on habeas rights available to those convicted of crimes. (For example, a 1996 law known as the Anti-Terrorism and Effective Death Penalty Act set stricter time deadlines for habeas petitions, and restricted prisoners’ ability to file another petition after one had already been denied.)10 But until now, no American law left individuals detained by the Executive without any legal means to challenge their detention.11

3.

Habeas Protections Extend To Foreign Nationals.

Contrary to many misperceptions, habeas corpus rights have extended to those who are not United States citizens.

The Supreme Court has previously reviewed the habeas petitions of foreign nationals detained by the United States during armed conflict. In two separate World War II cases, for example, the Court reviewed habeas petitions filed by foreign nationals including a group of Nazi saboteurs and a Japanese general accused of war crimes. Though the Court in these cases, In re Yamashita12 and Ex parte Quirin,13 ultimately rejected the petitioners’ claims, habeas review was nonetheless available to review the lawfulness of the detainees’ situation.

The Administration principally and mistakenly rests its claim that habeas rights do not apply to Guantanamo detainees on another World War II case, Johnson v. Eisentrager.14 This case was brought by a group of German soldiers who had been captured and convicted in China and who were imprisoned in Germany. In denying their habeas petitions, the Supreme Court noted that all of the prisoners were admitted enemies of the United States and that all had been tried and convicted by a military court.

The current detention of “enemy combatants” is very different. An overwhelming majority of prisoners at Guantanamo deny they are enemies of this country; all but a handful have never been charged with any crime, let alone been tried by any court. Most will never be charged.15 In addition, the prisoners in Eisentrager were held in Germany; the Guantanamo detainees, by contrast, are imprisoned in territory over which the United States government exercises complete and exclusive control and jurisdiction – territory that, in the words of Supreme Court Justice Anthony M. Kennedy, “is in every practical respect a United States territory.”16 For those detainees who seek to contest their designation as “enemy combatants,” the United States is the only sovereign that can hear their cases or order them freed if they are wrongly imprisoned.

4.

The Supreme Court Has Made It Clear That Habeas Extends

to Alleged “Enemy Combatants.”

In Hamdi v. Rusmfeld, the Supreme Court held that an individual captured during active combat in Afghanistan had the right to habeas corpus to determine whether his detention remained within “the permissible bounds” of the law.17 What are the legal limits of the “enemy combatant” category? The Bush Administration defines this category so broadly that it would include a person who, for example, innocently donated money to a charity that he did not realize was secretly financing terrorist activities. In Hamdi, the Court made clear that the proper scope of the “enemy combatant” definition is subject to independent judicial review.

The Supreme Court also ruled in Hamdi that habeas requires sufficient factual evidence to sustain a prisoner’s detention. The Court explained that detainees must receive notice of the allegations against them and a meaningful opportunity to rebut those allegations before a neutral decision maker.18 Habeas, the Court made

clear, thus helps ensure that errant tourists, embedded journalists, local aid workers, and others captured amid the chaos of a foreign war zone are not mistakenly swept up and wrongly detained.19 Hamdi was an American citizen. But in another decision, Rasul v. Bush, the Supreme Court made clear that habeas extends to foreign nationals held as “enemy combatants.” Noting that “Executive imprisonment has been considered oppressive and lawless” since Magna Carta, the Court affirmed the right of Guantanamo detainees to challenge their indefinite imprisonment through habeas corpus.20 Emphasizing that the detainees insisted that they were “wholly innocent of wrongdoing,” the Court made it clear that there was just as good a chance that innocent foreigners, as well as American citizens, could be imprisoned by mistake.21

5.

Habeas Protections Are More – Not Less – Essential During The

Kind Of Indeterminate Conflict In Which We Are Now Engaged.

The United States has, President Bush says, never before fought a war like the Administration’s current “Global War on Terror.”22 According to the Administration, this struggle has no clearly identifiable enemies, no recognizable battlefields, and no foreseeable end. It is precisely the indeterminate, open-ended nature of the struggle that increases the risk that government officials will inadvertently detain innocent civilians on the basis of unfounded suspicion, innuendo or mistake.

And, since the Administration says the “Global War on Terror” will last for generations, mistakes are thus of greater – possibly life-long – consequence to those wrongly deemed “enemy combatants.”

Some detained at Guantanamo are without doubt enemies of this country. But, disturbingly, there is much evidence that many, if not most, detained there are in fact innocent of any connection to terrorism—and that the government has long been aware of this. A confidential CIA memo written in 2002, for example, reported that most of the Guantanamo detainees “didn’t belong there.”23 A former Guantanamo commander went further: “Sometimes we just didn’t get the right folks.” But, the Commander explained, people remained in detention because: “Nobody wants to be the one to sign the release papers. There is no muscle in the system.”24 Habeas is the muscle on which prisoners have relied throughout American history.

Restoring habeas review would protect this country – along with the citizens of the world – from the possibility that innocent people might mistakenly spend indeterminate terms – possibly entire lives – in prison, without charge, under the control of the United States government.

6.

Habeas Petitions Are Not Frivolous Prisoner Conditions Suits.

As Congress debated the 2005 and 2006 laws, many legislators appeared to believe that prisoners routinely use habeas petitions to file frivolous complaints about prison food or insufficient Internet access. “Crazy lawsuits out there.” That’s what Senator Lindsey Graham said about lawsuits in which Guantanamo detainees

supposedly complained about slow mail service and the quality of medical services.25 In fact, habeas petitions are categorically different from prison lawsuits.

Prisoners often raise quality-of-life issues through lawsuits. They sometimes seek money damages. Congress previously curbed such suits. The Prison Litigation Reform Act, passed in 1995, limited prisoners’ access to the courts. But a habeas petition is different. In essence, it asks, “Can this person be detained?” It does not ask “how” that detention should proceed. Habeas thus goes to the far more elementary question of whether there is a basis in fact and in law to hold a person in the first place. To be sure, in the habeas petitions filed

by Guantanamo detainees, some of the detainees’ lawyers have raised disturbing questions about prolonged isolation, brutal forced feeding of those engaged in hunger strikes, and other improper practices.26 In so doing, they are simply ensuring they can zealously represent a client whose wishes they can discern. And this small number of cases indicates more about abusive interrogations and other problematic practices than it does about any possible danger that the habeas right will be abused for frivolous purposes.

7.

Habeas Corpus Strengthens National Security By Giving Legitimacy

To The Fight Against Terrorism.

In his leaked 2003 memo, then Secretary of Defense Donald Rumsfeld asked a pointed question that should guide future counter-terrorism policy:

Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?27

The sense that the United States is a country that honors the rule of law and basic human rights has long been one of our greatest foreign-policy assets. But in the global struggle against al Qaeda and its affiliates, the idea that the United States no longer plays by its own rules is a huge recruiting boon to our enemies.

Allegations of torture and images from Abu Ghraib have led to a state in which, as former Secretary of State Colin Powell said, “The world is beginning to doubt the moral basis of our fight against terrorism.”28 Donald Rumsfeld’s successor, Robert Gates, warned that the treatment of those detained at Guantanamo “taints” the fight against terrorism and deprives this country of international credibility.29 (Gates urged that the Guantanamo facility simply be closed.) Disregarding longstanding constitutional protections simply offers new ammunition to those who assert the United States is a lawless hyper power.

Worse, there is strong reason to believe that the effort to strip habeas rights from detainees is in fact an effort to hide unlawful conduct. According to a leaked Justice Department Memorandum from December 2001, the Administration decided to hold individuals as “enemy combatants” at Guantanamo precisely because, it believed, prisoners there would be beyond the protections of American law and, in particular, habeas corpus. In its memo, two Justice Department lawyers wrote that if a court reviewed the detentions, it might find some of them illegal under the Geneva Conventions and other legal obligations.30 The creation of whole classes of people who can be held without habeas corpus or any other guarantee of fundamental rights undermines the United State’s moral authority as well as its credibility as a defender of

liberty. People around the world judge us by our deeds, not our words. By subjecting detention decisions to habeas review, the United States demonstrates that the fight against terrorism is legitimate and that we are detaining the right people, an obvious predicate step to gaining the broad support necessary for success.

8.

The Federal Courts Can Handle Classified Evidentiary Issues

in Habeas Cases.

For decades the federal courts have safely managed criminal and civil cases involving classified and top secret information. Such cases have been resolved fairly and expeditiously and without compromising national security.31 Numerous recent examples of the courts’ effective protection against disclosure of classified evidence include the prosecution of individuals charged with bombing U.S. embassies in Kenya and Tanzania. In each instance, courts effectively protected against the disclosure of classified information without inhibiting the government’s ability to convict the defendants.32 The federal habeas statute and rules give federal judges specific tools to control and safeguard information.

They also set out a workable, streamlined series of procedures for evidentiary issues.

Alexander Hamilton declared habeas corpus a “bulwark” of individual liberty, calling secret imprisonment the most “dangerous engine of arbitrary government.

Effective procedures have already been developed for detainee cases involving “enemy combatants.” Federal District Judge Joyce Hens Green who presided over early cases involving Guantanamo detainees, issued a protective order in 2004 that ensured secure storage, handling and control of classified national security information.33 The protective order, the product of extensive negotiations between lawyers for the detainees and for the United States and consideration of legal briefs from both sides, has since governed all of the more than two hundred habeas cases filed by or on behalf of Guantanamo detainees. It includes measures to prevent the inadvertent disclosure of classified information while enabling detainees to present evidence of innocence to a federal judge with the assistance of counsel. It provides an example of how liberty and security can successfully be balanced in the federal courts.

9.

Congress Has Not Created An Adequate Substitute For Habeas Corpus.

The Military Commissions and Detainee Treatment Acts do not provide an adequate substitute for habeas corpus. Quite the reverse: these laws sanction indefinite imprisonment without due process and allow rendition

to other countries for torture and other mistreatment.

Under the new statutes, “enemy combatants” can seek review in the U.S. Court of Appeals for the D.C Circuit.

But both statutes limit the scope of that review in crucial ways. These laws confine judicial review to the record of facts created by a Combatant Status Review Trial (“CSRT”), a summary military proceeding devised in 2004 by the Executive precisely to avoid habeas review.34 The CRST lacks key protections against erroneous decisions: They simply do not, and cannot, serve as fair fact-finding instruments. For example, the CRST requires that the detainee prove himself innocent of allegations he cannot even see. A detainee has no counsel in CRST The Executive has never before hearings. He has no right to claimed the power to eliminate habeas present witnesses or evidence in his own defense.35 The corpus without finding that the government did not produce public safety required it. any witnesses at any CRST hearings and, in 96% of the cases, failed to provide any documentary evidence.36 In addition, the CRST allows for the use of evidence gained by coercion and even torture.37 Any detention review scheme that is grounded on acceptance of CSRT findings will necessarily be fundamentally flawed, and cannot provide the basic protections against unlawful executive detention that habeas has historically afforded.

As written, the MCA and DTA do not allow the CSRT records to be supplemented even if available evidence proves the detainee’s innocence or shows that he confessed after prolonged abuse and/or torture. Court review limited in these ways undermines the integrity of the Judiciary by denying federal courts the basic tools necessary to actually review questionable practices and findings. Today, only the scrutiny of an independent federal judge on habeas corpus will be sufficiently credible to warrant further detention.

The new statutes also slow the judicial process. For many detainees, this means prolonging their wrongful imprisonment. The D.C. Circuit recently ruled that the MCA eliminates habeas corpus jurisdiction over the Guantanamo detainee habeas cases.38 The Supreme Court decided not to review this decisionat the present time. In so doing, the Court indicated that prisoners at Guantanamo should first go back to the D.C. Circuit.39 But that court has already ruled that the detainees have no constitutional rights, so exhaustion of the DTA and MCA’s limited remedies will almost certainly be futile. The Supreme Court may eventually review the D.C. Circuit’s decision, but Congress doesn’t need to – and should not – wait for the Court to act. It should instead restore habeas corpus now and provide the lawful process that should have been provided at the outset.

In addition, the new statues enable other questionable government conduct, including “extraordinary rendition,” a process in which the United States turns detainees over to the custody of other countries where they are likely to be tortured.

Where habeas is available, courts can at least review prisoner transfers to ensure that they comply with the

United States’ legal obligations, including the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, a treaty signed by more than 140 nations.40 The new laws, however, eliminate this important check along with other habeas protections, thus enabling the Executive to render prisoners for torture or continued imprisonment without due process.

10.

Congressional Action Is The Most Effective Way

To Restore Habeas Corpus.

Upholding the Constitution is the business of Congress as well as the Judiciary. As it did during the civil rights movement, Congress can – and should – play a key role in fulfilling America’s commitment to equal treatment and justice under law. Congress is poised to play the most expeditious role it can by restoring habeas and protecting a writ that protects us all from the possibility that we might be subject to the unchecked whim of a government stronger than its individual citizens.

Congress has an equal duty to uphold the Constitution and enact wise policy. It should not simply delegate that job to the courts. The 2006 election was a demand for accountability in foreign policy. It was a call, from voters, to right the balance between the Executive and the other branches. The laws stripping habeas rights from a single class of people is among the most egregious evidence of a period when the Executive was unchecked, unbalanced, and hence lawless.

Conclusion:

Misperceptions about habeas corpus have sometimes obscured its essential role in American law and society.

But habeas corpus is central to our values and traditions, commitment to due process, and respect for the rule of law. We cannot abandon it now.

Habeas does not merely safeguard individual liberty against wrongful detention. It helps protect our system of checks and balances by curbing abuses by the Executive, something particularly important at a time in which fears of terrorism make excess more likely.

Habeas enhances counter-terrorism efforts by helping ensure the United States lawfully detains those who threaten our security. Doing so will help legitimize those efforts and restore our international credibility.

The unconventional, unlimited nature of the Administration’s so-called “Global War on Terrorism” makes habeas more, not less important. Congress can and should repeal the court-stripping provisions of the Military Commissions and Detainee Treatment Acts and restore habeas corpus today.

Endnotes 1

Pub. L. No. 109-148, 119 Stat. 2680 (2005).

2

Pub. L. No. 109-366, 120 Stat. 2600 (2006).

3

The Declaration of Independence para. 20 (U.S. 1776).

4

The Federalist No. 84 (Alexander Hamilton) (Clinton Rossiter ed. 1961).

5

Compare 2 The Records of the Federal Convention of 1787, at 438 (M. Farrand ed. 1966) (no suspension except “on the most urgent occasions, and then only for a limited time not exceeding twelve months”) (proposal of Charles Pinckney) (internal quotation marks omitted), with id. (habeas corpus “inviolable” and should never be suspended) (proposal of John Rutledge).

6

U.S. Const. art. I., § 9, cl. 2.

7

William F. Duker, A Constitutional History of Habeas Corpus 149, 178 n.190 (1980).

8

The Brennan Center is lead counsel for Mr. al-Marri.

9

Adam Liptak, In A War With Vague Boundaries, A Terror Detainee Longs for Court, N.Y. Times, Jan. 5, 2007, at A1.

10

The Brennan Center does not support the Anti-Terrorism and Effective Death Penalty Act’s restrictions on post-conviction relief which, particularly in death penalty cases, plays a vital role in safeguarding constitutional rights and preventing unjust results.

11

The Anti-Terrorism and Effective Death Penalty Act, like another statute enacted several months later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, also purported to restrict the right of certain immigrants to judicial review of their deportation orders. The Supreme Court concluded that the acts did not repeal immigrants’ right to habeas corpus, noting that such legislation would raise “serious constitutional problems” under the Suspension Clause. INS v. St. Cyr, 533 U.S. 289, 299-300 (2001).

12

In re Yamashita, 327 U.S. 1 (1946).

13

Ex parte Quirin, 317 U.S. 1 (1942).

14

Johnson v. Eisentrager, 339 U.S. 763 (1950).

15

In more than five years, only ten of the more than seven hundred individuals who have been detained at Guantanamo have been charged with a crime. Those ten detainees were charged before military commissions. See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). After the Supreme Court invalidated the commissions in Hamdan, Congress enacted the MCA, providing the statutory authorization for military commissions that the Court found was previously lacking. Three detainees have since been charged before military commissions and one, David Hicks, has pled guilty.

16

Rasul v. Bush, 542 U.S. 466, 487 (2004).

17

Hamdi v. Rumsfeld, 542 U.S. 507, 522 n.1 (2004) (plurality opinion).

10

18

Id. at 533.

19

Id. at 534.

20

Rasul, 542 U.S. at 475 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218-19 (1953) (Jackson, J., dissenting))

21

Id. at 485.

22

The Brennan Center rejects the proposition that from a legal standpoint there is such a thing as a “war on terror” or that United States can be at war with an international terrorist organization like al Qaeda.

However, even assuming that there is a “war on terror,” or global armed conflict against a transnational terrorist group such as al-Qaeda, habeas corpus must exist to ensure that this “war” is conducted with in legal limits and that individuals are not wrongfully detained.

23

Jane Mayer, The Hidden Power: The Legal Mind Behind the White House’s War on Terror, The New Yorker, July 3, 2006.

24

Christopher Cooper, Detention Plan: In Guantanamo, Prisoners Languish in Sea of Red Tape, Wall St. J, Jan. 26, 2005, at A1.

National Defense Authorization Act for Fiscal Year 2006 - Conference Cong. Rec. S14256, 14262 (daily ed. Dec. 21, 2005) (statement of Sen. Graham).

25

Report, 151

26

See, e.g., Tim Golden, Guantanamo Detainees Stage Hunger Strike Despite Force-Feeding Policy, N.Y. Times, Apr. 9, 2007, at A12.

27

Walter Shapiro, Rumsfeld Memo Offers Honest Display of Doubts About War, USA Today, Oct. 24, 2003, at 5A.

28

David Jackson & Kathy Kiely, Strategy on Terror Suspects Splits GOP; Key Senators Say No to Bush Plan, USA Today, Sep. 15, 2006, at 1A.

29

Thom Shanker & David Sanger, New to Pentagon, Gates Argued for Closing Guantanamo Prison, N.Y. Times, Mar. 23, 2007, at A1.

30

See “Possible Habeas Jurisdictions over Aliens Held in Guantanamo Bay, Cuba,” Memorandum for William J. Haynes II, General Counsel, Department of Defense, from Patrick F. Philbin and John C. Yoo, in The Torture Papers: The Road to Abu Ghraib 29 (Karen J. Greenberg & Joshua L. Dratel eds. 2005).

31

In particular, federal courts have effectively protected against the disclosure of classified evidence in criminal cases through procedures provided under the Classified Information Procedures Act. Pub. L. No. 96-456, 94 Stat. 2025 (1980), codified at 18 U.S.C. app. 3 sec. 1 et seq.

32

See Serrin Turner & Stephen J. Schulhofer, Brennan Center for Justice, The Secrecy Problem in Terrorism Trials (2005), available at http://www.brennancenter.org/dynamic/subpages/download_ file_34654.pdf.

33

In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004).

34

See Combatant Status Review Tribunals Order of the Deputy Secretary of Defense of July 7, 2004,

11

para. a, available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf.

35

See Boumediene v. Bush, 476 F.3d 981, 1005-07 (D.C. Cir. 2007) (Rogers, J. dissenting); see also Mark Denbeaux and Joshua Denbeaux, No-Hearing Hearings: CSRT the Modern Habeas Corpus? An Analysis of the Proceedings of the Combatant Status Review Tribunals at Guantánamo, at 2633 (2006), available at law.shu.edu/news/final_no_hearing_hearings_report.pdf. Instead, the CSRT allows a detainee to present evidence only when “reasonably available,” a provision CSRT has construed to refuse detainees’ requests to call witnesses (including other detainees at Guantanamo) and detainees’ requests to obtain basic documents, such as medical records from a specified hospital, a passport, and records from court proceedings, all of which could have exonerated the detainee.

36

See Denbeaux and Denbeaux, supra note 35, at 31.

37

See Boumediene v. Bush, 476 F.3d at 1006; see also, M. Denbeaux, supra, at 36.

38

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

39

Boumediene v. Bush, 127 S. Ct. 1478 (2007) (statement of Stevens and Kennedy, JJ., respecting the denial of certiorari).

40

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

12

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Unregulated Work in the Global City ANNETTE BERNHARDT, SIOBHAN MCGRATH AND JAMES DEFILIPPIS

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Unfinished Business: New York State Legislative Reform 2006 Update LAWRENCE NORDEN, DAVID E. POZEN AND BETHANY L. FOSTER

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Attachment B Federal Habeas Corpus Review Bureau of Justice Statistics

Page 60 of 66

U.S. Department of Justice Office of Justice Programs

Bureau of Justice Statistics

Federal Habeas Corpus Review Challenging State Court Criminal Convictions

Discussion Paper

Federal Habeas Corpus Review Challenging State Court Criminal Convictions

Roger A. Hanson Senior Staff Associate Henry W.K. Daley Staff Associate National Center for State Courts September 1995, NCJ-155504

U.S. Department of Justice

Bureau of Justice Statistics Jan M. Chaiken, Ph.D. Director

The research for this report was supported by a grant from the Bureau of Justice Statistics to the National Center for State Courts (92-BJ-CS-KO26). The views expressed and the conclusions drawn in this paper do not necessarily reflect the views or policies of the Bureau of Justice Statistics or the Department of Justice.

BJS Discussion Papers promote the exchange of information, analyses, and ideas on issues related to justice statistics and to the operations of the justice system. This paper represents the view of the authors only.

The authors may be contacted at  300 Newport Avenue Williamsburg, Virignia 23105 (804) 253-2000 fax (804)220-0449

ii Federal Habeas Corpus Review

Contents Highlights iv Introduction

1

A preview of the discussion sections Study design

5

6

Number of habeas corpus petitions in U.S. district courts per 1,000 prisoners

8-9

The landscape of habeas corpus 10 Processing time for habeas corpus petitions Federal review processing time Conclusions

20

21

28

References 31 Acknowledgments

33

Challenging State Court Criminal Convictions iii

Highlights State prisoners can challenge the validity of their convictions and sentences by filing habeas corpus petitions in a Federal court. These petitions allege that the police, prosecutor, defense counsel, or trial court deprived the prisoners of their Federal constitutional rights, such as the right to refuse to answer questions when placed in police custody, the right to a speedy and fair trial, and the right to effective assistance of counsel. Because these petitions must have been presented to the State courts for review, the prisoners are relitigating previously resolved issues. Nevertheless, if these petitions are successful in Federal courts, Federal judges can issue writs of habeas corpus ordering the prisoners to be released from custody, their sentences reduced, or their cases remanded for retrial or resentencing.

These petitions raise basic questions about the respective institutional roles of the Federal and State courts, the finality of the criminal legal process, and the efficiency of Federal review. Is a Federal examination of issues already adjudicated in the State courts necessary to preserve individual constitutional rights? Is swift and sure punishment, a goal of the criminal justice system, compromised or maintained by review? Are the courts in control of habeas corpus litigation or do these cases take on lives of their own? These kinds of questions are part of a perennial debate among national and State policymakers, judges, and attorneys concerning the appropriate scope of review, with one side seeking to restrict the scope of Federal review and the other side seeking to maintain or to expand the scope.

The current research reports the results of inquiry by the National Center for State Courts, with the support of the Bureau of Justice Statistics, into the processing of habeas iv Federal Habeas Corpus Review

corpus petitions in 18 Federal district courts located in 9 selected States (Alabama, California, Florida, Indiana, Louisiana, Missouri, New York, Pennsylvania, and Texas), which comprise approximately half of the Nation's 10,000 petitions filed each year.

What do habeas corpus petitions involve?

The petitions are challenges from prisoners primarily convicted of violent offenses and given correspondingly severe sentences. The issue most frequently raised is that the prisoner received ineffective assistance of counsel (such as the defense counsel's not cross-examining a prosecution witness or not objecting to a denial of the court's continuance motion); fewer issues claim constitutional violations by the trial court, prosecutor, or the police.

Less than 1% of the sentences are death-penalty sentences.

Most sanctions are custodial sentences, although 21% are life sentences. Case processing times vary considerably, with the fastest 10% taking less than a month to resolve and the slowest 10% taking over 2 years to resolve.

Because assumptions about timeliness underlie almost all of the various positions in the policy debate, this research seeks to explain case processing time.

Why do some petitions take longer than others to resolve?

The evidence suggests that case complexity determines processing time. If cases fail to satisfy the basic procedural requirements of habeas corpus, the petitions are dismissed expeditiously. The greater the number of issues in the petition, the longer the time it takes to resolve the petition.

Challenging State Court Criminal Convictions v

Moreover, other factors related to case complexity, such as the appointment of counsel and the holding of evidentiary hearings, add their effects by increasing case processing time. Case processing time is affected only to a limited extent by case characteristics like most serious offense at conviction, underlying trial court proceeding, sentence, and type of issue. Consequently, the Federal review appears to be an efficient process shaped by relevant legal factors.

The report ends with a brief discussion of the possible implications of the research for the national policy debate.

One implication is that the debate might be focusing too narrowly on petitions challenging death-penalty sentences.

These petitions are less significant in determining case processing time than petitions arising from life sentences.

Because habitual offender and related statutes like threestrikes-and-you're-out are likely to increase the proportion of prisoners with life sentences among State prison populations, a broader focus in the debate seems prudential.

Second, there is a need to refocus on the question of whether there should be greater deference to the State courts. U.S. Supreme Court Associate Justice Sandra Day O'Connor raised this issue several years ago, but its relevancy seems at least as appropriate now as then. As shown in this nine-State study, the validity of State court convictions remains intact with the granting of very few petitions despite careful and extensive Federal review. Concrete steps toward greater deference can and should be made through the adoption of specific legislation pending before Congress. A more complete and coherent policy of deference toward the State courts should also be encouraged through a renewed dialogue among Federal and State judges on potential changes in key legal doctrines.

Roger A. Hanson

Henry W.K. Daley

vi Federal Habeas Corpus Review

Introduction State prisoners can petition Federal courts to review the validity of their convictions and sentences. They seek to relitigate collaterally Federal constitutional issues already adjudicated in State court. These petitions, commonly called habeas corpus petitions, allege that the criminal proceedings and the resultant convictions and or sentences involved violations of the prisoners' Federal constitutional rights by the police, prosecutor, defense counsel, or State court. If a prisoner's petition is successful, a Federal court can issue a writ of habeas corpus, ordering that the prisoner be released from custody, have the sentence reduced, or the case remanded for further proceedings such as retrial or resentencing.

These petitions are important to understand for three fundamental reasons. First, they highlight the complex interrelationship between the State and Federal courts in a Federal system of government. Despite a State appellate court's having devoted considerable resources in determining whether reversible error occurred at the trial where a prisoner was convicted, lower Federal courts have the jurisdiction to review the State court criminal proceedings for possible violations of Federal constitutional provisions, based on both U.S. statute1 and subsequent Supreme Court decisions.2 Many commentators disagree over whether the Federal collateral review of State criminal proceedings is necessary to preserve national uniformity in individual constitutional rights. This conflict will never be settled completely because the disagreements reflect divergent positions on basic values, such as Federal oversight and 1

Act of February 5, 1867, Ch. 28 ยง 1 14 Sta. 385, 385-86 (codified at 28 U.S.C. 2241).

2 Brown v. Allen, 344 U.S. 443 (1953).

Federal Habeas Corpus Review 1

August 24, 1995

individual liberty. Yet, systematic information on how Federal courts handle habeas corpus petitions can help reduce friction between the two sets of court systems by replacing inaccurate images or untested assumptions about the Federal review process.

Second, policy proposals concerning the scope of Federal court review arise perennially in the U.S. Congress and among judges, lawyers, and legal scholars. Specific changes in legal doctrines expanded the scope of review in the 1960's,3 while later changes restricted it.4 Because new proposals to modify the review process are likely to emerge, empirical knowledge of the effectiveness of the current review process should contribute to a firmer set of assumptions to inform the policy debates.

Third, the volume of habeas corpus petitions warrants inquiry into case processing efficiency and administration.

While habeas corpus is a civil writ about a criminal case, the Administrative Office of the U.S. Courts counts habeas corpus petitions in its civil caseload. For the past several years the number of habeas corpus petitions filed in the Nation's Federal district courts has equaled or slightly exceeded 10,000 cases. This volume translates into about 4% of the entire Federal district court civil caseload. Despite the size of the body of litigation, there are only four systematic investigations into the handling of habeas corpus petitions: Shapiro (1973); Robinson (1979); Faust, Rubenstein, and Yackle (1990-91); and Flango (1994).

3

Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 745 (1963).

4 Stone v. Powell, 428 U.S. 465 (1976); Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Issac, 456 U.S. 107 (1982); Marshall v. Longberger, 259 U.S. 422 (1983); Teague v. Lane, 489 U.S. 288 (1990); McCleskey v. Zant, 111 ยง Ct. 1454 (1991).

2 Challenging State Court Criminal Convictions

These studies are valuable contributions to understanding the landscape of habeas corpus petitions. They give an account of the relative frequency of different issues raised in the petitions, the nature of legal representation for the prisoners, the outcomes of the petitions (dismissed, denied, or granted), and the offenses and sentences being challenged.

However, Shapiro focuses only on U.S. District Court in the District of Massachusetts, while Faust, Rubenstein, and Yackle analyze only the U.S. District Court for the Southern District of New York. The general application of their findings is limited. Robinson's study, which includes five Federal district courts, along with Flango's examination of two Federal district courts in each of four States, offer the most complete empirical treatments of the subject. Yet none of the studies addresses basic questions about the processing and processing time of habeas corpus petitions.

How much time do the Federal courts take to complete their reviews? Is there considerable variation among courts or by type of case? If so, are there identifiable determinants, such as complexity, of why some petitions take longer to be resolved than other petitions?

Timeliness is a factor that underlies the divergent views about the institutional role, efficiency, and administration of the Federal review process. Much of the concern about the basic role of Federal review stems from the amount of time taken to resolve petitions. If excessive, time in review could undermine the criminal justice system's goals of finality and swift punishment. Some in the debate over the value of Federal review also assert that the Federal process is driven by prisoners who have a lot of time on their hands. Are the Federal courts helpless to control the process, or are there identifiable and understandable determinants of the pace of litigation? Finally, timeliness is an element in the discussion of how well managed the process Federal Habeas Corpus Review 3

is. To what extent do the Federal courts differentiate meritorious cases from those that lack an adequate basis in law or fact?

While the pace of litigation is not the only factor pertinent to the key assumptions made by participants in the national debate over habeas corpus policies and procedures, it is the factor that can best be addressed with systematic data, which provide findings with broader policy implications.

The guiding perspective to be tested empirically is that Federal court review is responsive to case complexity and that complexity is more important in determining processing time than case characteristics, such as the prisoner's sentence (life imprisonment or death penalty), manner of conviction (jury trial or guilty plea), or the most serious offense at conviction. This perspective is not novel in studies of civil litigation, but in its first application to habeas corpus litigation, it produces some important, unexpected findings.

4 Challenging State Court Criminal Convictions

A preview of the discussion sections The section on the study design provides background information on the conduct and organization of the inquiry.

How were research sites selected? What information was collected on individual habeas corpus petitions?

The section describing briefly the landscape of habeas corpus asks the following: What sorts of challenges to convictions do the prisoners raise? Are the challenges directed toward the police, prosecutors, defense counsel, or the court? Are the prisoners' underlying offenses serious and are the sentences severe? What percentage of petitions arise from capital convictions?

The section on Federal review processing time analyzes how and why some petitions take longer to be resolved than others. Are there identifiable factors that help to explain case processing time?

The final section concludes the report with an effort to provide cohesion between the findings and the larger debate surrounding Federal habeas corpus litigation.

Federal Habeas Corpus Review 5

Study design The scope of this paper encompasses the handling of habeas corpus petitions in 18 Federal district courts in 9 selected States. Alabama, California, Florida, Indiana, Louisiana, Missouri, New York, Pennsylvania, and Texas were chosen because they have about half of the Nation's habeas corpus petitions while representing a range of habeas corpus litigation rates. (See the tables on pages 8 and 9.) These States also vary geographically and are affected by decisions of seven different U.S. Circuit Courts of Appeals. To ensure sufficient death-penalty cases in the study sample, the States, except for New York, were chosen from the 37 States that have the death penalty as a criminal sanction. However, because the States were not chosen randomly, the sample of cases is not necesaarily a representative one for making measurable generalizations about all habeas cases nationwide.

The research staff attempted to collect 300 cases per State from U.S. district court closed caseloads.5 Cases were randomly selected from lists provided by the Administrative Office of the U.S. Courts. A team of senior researchers and law students examined individual case files and recorded information on data collection forms. Data entry 5 The actual number of cases per district is as follows: Alabama Southern District (55), Alabama Middle District (144), California Eastern District (77), California Northern District (93), Florida Central District (223), Florida Southern District (46), Indiana Northern District (183), Indiana Southern District (122), Louisiana Eastern District (138), Louisiana Middle District (72), Missouri Eastern District (165), Missouri Western District (165), New York Southern District (101), New York Eastern District (120), Pennsylvania Eastern District (187), Pennsylvania Western District (112), Texas Northern District (139), Texas Southern District (195).

6 Challenging State Court Criminal Convictions

staff translated the coded information into databases for analysis.

The data include the number and type of issues raised in the petition, the most serious offense and the sentence imposed at conviction, the underlying State trial court proceeding, the key procedural events in the case and the dates of those events, the manner of disposition, the reason for a court dismissal, and whether the petition was appealed.6 The inquiry is acknowledged to be limited in scope in two respects. First, the samples consist of cases disposed of in a single year, 1992. A longitudinal database might yield different results, although those in this study comport remarkably with Robinson's findings in 1979. Limited time and resources precluded a more extensive investigation.

Second, all of the information presented is limited to that available in the closed case files. No inquiry was made into the views of the participants in the cases. Moreover, cases were not tracked to determine their entire history at the State court level prior to being filed at the Federal 6 The types of issues raised in habeas corpus petitions were coded into the following categories: ineffective assistance of counsel (failure to object to admissibility/sufficiency of evidence, failure to call witnesses, failure to cross-examine, and failure to object to denial of a continuance notion), trial court errors (failure to suppress improper evidence, improper jury instructions), prosecutorial misconduct (failure to disclose, use of perjured testimony, and inflammatory summation), 4th amendment (unlawful arrest), 5th amendment (coerced confession, improper/defective indictment, and invalid/coerced guilty plea), 6th amendment (denial of speedy trial and improper jury selection), 8th amendment (excessive sentence and improper application of a habitual offender statute), 14th amendment (violation of due process and equal protection), and other types of issues (conditions of confinement).

Federal Habeas Corpus Review 7

district court or on a subsequent appeal to the Federal circuit court. The data can only enrich the understanding of what takes place in Federal district courts at a particular time and are not a complete history of habeas corpus Number of habeas corpus petitions in U.S. district courts per 1,000 prisoners, by States with an average or higher filing rate, 1991 Jurisdiction Total

Habeas corpus filings

State prisoner population

Number of habeas filings per 1,000 State prisoners

10,310

752,565

14

Missouri North Dakota West Virginia Indiana Pennsylvania Arkansas Alabama Tennessee Kentucky Montana

582 18 62 416 618 197 421 273 228 34

15,897 492 1,502 13,006 23,388 7,766 16,760 11,474 8,799 1,478

37 37 35 32 26 25 25 24 23 23

Nebraska Nevada Arizona Louisiana Oklahoma New Mexico Iowa Washington Mississippi Wisconsin

56 115 273 354 231 54 71 153 146 126

2,495 5,503 15,415 20,003 13,340 3,119 4,145 9,156 8,904 7,849

22 21 18 17 17 17 17 16 16 15

Maine New Hampshire Virginia Wyoming Florida Hawaii Oregon Delaware Texas

24 23 290 16 673 39 95 52 711

1,579 1,533 19,829 1,099 46,533 2,700 6,732 3,717 51,677

15 15 15 15 14 14 14 14 14

8 Challenging State Court Criminal Convictions

petitions. However, as will be demonstrated, the data are sufficiently rich to address a variety of important questions with considerable precision and confidence.

Number of habeas corpus petitions in U.S. district courts per 1,000 prisoners, by States with a below average filing rate, 1991

Jurisdiction Total South Dakota Idaho Vermont Colorado California Kansas New York Michigan Minnesota Alaska Maryland Illinois New Jersey Utah South Carolina Ohio Georgia North Carolina Massachusetts Connecticut Rhode Island Dist. of Columbia

Habeas corpus State prisoner filings population

Number of habeas filings per 1,000 State prisoners

10,310

752,565

14

18 27 13 96 1,162 67 647 385 35 27 180

1,374 2,143 1,118 8,392 101,808 5,903 57,862 36,423 3,472 2,706 19,291

13 12 11 11 11 11 11 11 11 10 9

262 188 21 142 269 165 123 51 51 10 30

29,156 23,483 2,625 18,269 35,744 23,644 18,903 9,155 10,977 2,771 10,455

9 8 8 8 8 7 7 6 5 4 3

Federal Habeas Corpus Review 9

The landscape of habeas corpus The landscape of Federal habeas corpus petitions has been examined most thoroughly in a 1994 four-State study by Flango. Data from the current research support much of what emerged in that study. Confirmation of the four-State landscape is not the main purpose of the current research in part because four of the States in this nine-State study were used in the previous study.7 Furthermore, while it is interesting to know what the landscape looks like, the landscape does not indicate how different factors are related to each other and what their combined effect is on the timeliness of Federal review. Hence, the purpose of this section is to document familiar landmarks to set the stage for the analysis.

7

Flango's study, which was supported by a grant from the State Justice Institute to the National Center for State Courts, focused on State and Federal court reviews of habeas corpus petitions in Alabama, California, New York, and Texas disposed of in 1990 and 1992. The Bureau of Justice Statistics, in a grant to the National Center for State Courts, separately funded the analysis of habeas corpus petitions in five additional States, as well as a study of Section 1983 lawsuits in nine states. Finally, the Bureau of Justice Statistics funded the collection of particular case characteristics, such as the underlying trial court proceedings, the most serious offense, and the sentence imposed at conviction.

10 Challenging State Court Criminal Convictions

Most prisoners filing habeas corpus petitions in Federal court have been convicted of violent crimes by State trial courts and have been given a severe sentence.8

Most serious offense (1,976 petitions) Homicide 23% Other violent crimes (rape, sexual 39 abuse, robbery, kidnaping) Burglary/theft/drug trafficking or 27 possession/weapons Other offenses 12 Sentence (1,895 petitions) Prison/jail term of years Life Death

78% 21 1

Approximately two-thirds of the sampled prisoners had been convicted of homicide or other serious, violent crimes against the person. Furthermore, more than 1 in every 5 prisoners had received a life sentence. Life sentences included life with parole, life without parole, and life with an additional number of years.

The observed sentencing patterns are related to the pattern of violent offenses, but they also reflect the application of habitual offender laws, which impose lengthy periods of 8

In all tables the data have been aggregated into a single sample rather than maintainted as nine distinct State samples for two reasons. First, the similarities among the States are more striking than the differences. Statistically significant differences between States in variables such as the relative frequency of issues, timeliness, or sentence patterns do not emerge. Second, there is a limited number of State-by-State observations for variables like court-appointed attorneys and death penalty sentences. Much of the analysis required a larger number of observations.

Federal Habeas Corpus Review 11

incarceration or life sentences for individuals convicted of three felony offenses. Another factor that accounts for the heavy representation of lengthy custodial sentences and the noticeable number of life sentences in the sample is the time required to exhaust State remedies in order to file a habeas corpus petition in the Federal district courts. Individuals with relatively short sentences are often out of prison before they can arrive at the Federal habeas doorstep.

Prisoners have to file a direct appeal in the State court and to undergo a review by the State courts of the same habeas corpus issues before filing a habeas corpus petition in the Federal court. Failure to do so results in a dismissal by the Federal court. This requirement takes considerable time to complete. For the sampled cases the average elapsed time between the date of conviction and the filing of a habeas corpus petition in Federal court was 1,802 days or nearly 5 years.9 Given that most offenders convicted of felonies are sentenced to 5 years or less, in all likelihood the process of getting to the Federal courts takes almost as long as most offenders will serve.10 Hence, habeas corpus litigation is a legal action most likely to be taken by more serious offenders who are incarcerated long enough to complete available 9

Robinson's study in 1979 found that the time from conviction in the State trial court to the filing of the habeas petition in Federal district court took 1½ years. Clearly, the increase in the time for this interval over the past decade and a half might be evidence of the extent to which State courts are devoting more and more resources to dealing with direct and collateral challenges to criminal convictions. It might also reflect other factors, such as the larger phenomena of increased criminal caseloads across all State appellate jurisdictions. The National Center for State Courts (1995) reports that from 1985 to 1993 the Nation's State intermediate appellate courts experienced a 37% increase in the number of mandatory criminal appeals.

12 Challenging State Court Criminal Convictions

State direct appeals and collateral challenges and proceed to the Federal arena. One consequence of these various factors is that Federal judges are confronted with “high stakes� litigation because most petitioners are serving long prison sentences.

The relatively low incidence of death-penalty sentences (1%) is noteworthy. Common among policy debates over habeas corpus litigation is the question of whether to broaden or limit the scope of Federal habeas corpus review for the specific purpose of acknowledging the unique and special circumstances of death-penalty cases. The effort to limit habeas corpus litigation in death-penalty cases attempts to put an end to what is now almost a ceaseless process. The effort to preserve all avenues of redress in death-penalty cases recognizes the extreme nature of the punishment.

The one assumption common to both sides is that numerous habeas petitions from death-penalty cases take a disproportionate amount of time to resolve, consuming the preponderance of attention that the Federal courts devote to habeas corpus litigation, seemingly to the detriment of noncapital habeas petitions. The data call that viewpoint into question. It is difficult to conceive how 1% of the habeas caseload, 100 out of 10,000 cases, can dominate the entire processing of Federal habeas corpus. Death-penalty cases may receive a great deal of attention, but it is an empirical question whether they require longer case processing time than cases with life or custodial sentences.

In addition to the background characteristics of the prisoner, the habeas corpus landscape includes the types of issues (claims) raised in the petitions. Information on issues was obtained from the final order in the case (or a magistrate judge's report) rather than from the prisoner's petition Federal Habeas Corpus Review 13

submitted to the court. The court's view of the number and type of issues was considered to be a more valid statement of the allegations.

One reason for relying on the court's statement of the number and types of issues raised is that few prisoners proceed with the benefit of legal counsel. In 93% of the sampled habeas corpus cases, the prisoner was without legal counsel (pro se). Courts appointed attorneys in 4% of the cases, although there is no constitutional right to an attorney in civil litigation. Generally, the court will request private attorneys to represent a prisoner in situations where the legal issues are complex and an evidentiary hearing might be necessary to determine the validity of the petitioner's allegations. In the remaining 3% of the cases, the prisoners either retained private counsel or were represented by the American Civil Liberties Union or a prisoners' rights group.

Types of issues raised in habeas corpus petitions Ineffective assistance of counsel Trial court errors 14th amendment 5th amendment 6th amendment 8th amendment Prosecutorial misconduct 4th amendment Other Number of issues

25% 15 14 12 7 7 6 5 9 5,167

About two-thirds of the issues in the sampled cases fell into one of four categories: defense counsel in the State trial court provided ineffective assistance (25%), trial court error (15%), violation of due process or a related right 14 Challenging State Court Criminal Convictions

protected by the 14th amendment (14%), or a violation of a right protected by the 5th amendment (12%). As might be expected, issues claiming a violation of the fourth amendment were the least frequent, as the U.S. Supreme Court's has ruled that assertions of illegal search and seizure are precluded from Federal habeas corpus proceedings if provided a full and fair opportunity to be heard in the State court.11 Generally, more issues were focused on the conduct of defense counsel and the State court rather than on the police or the prosecutor. For example, the number of allegations of ineffective assistance of defense counsel was much greater than the number of prosecutorial misconduct allegations. This difference reflected the viewpoint of prisoners in the habeas cases examined, but it may or may not have reflected the actual sources of constitutional violations. Additional information is needed on the outcomes of the petitions to assess the validity of the allegations. Nevertheless, it is important to recognize who are the targets of habeas corpus petitions and to understand that there are clear differences in their relative frequency.

11

Stone v. Powell (1976). However, search and seizure issues may be raised if defense counsel failed to object to the denial of a suppression motion. Kimmelman v. Morrison, 106 U.S. 2574 (1986).

Federal Habeas Corpus Review 15

The type of allegation is not the only information available on habeas corpus issues. The number of issues also is a distinguishable factor. Although the majority of sampled petitions were single-issue cases, most issues were acNumber of issues per habeas corpus petition Single issue 2 issues 3 issues 4 or more issues Number of issues

Percent of issues 31% 26 30 11 5,167

counted for in multiple issue cases. Because the nature of issues is defined in terms of the court's perspective, the number of issues takes on special significance. A court is likely to define issues more parsimoniously than prisoners.

Where a prisoner believes that there are three separate allegations of ineffective assistance of counsel, the court may believe that there is only one issue. A court is not likely to see more issues than are stated in the petition.

Because courts commonly include the number of issues in a case when screening for case complexity, this practice is incorporated into the analysis. More issues means greater case complexity. The number of issues is considered to be a proxy measure of complexity, providing a quantifiable factor for complexity, which cannot be observed directly.

16 Challenging State Court Criminal Convictions

Few of the dispositions for the sampled cases indicated outcomes favorable to the prisoners. A large majority of the petitions were dismissed. Sixty-three percent of the issues were dismissed either by the court or by the petitioner.

Manner of disposition of habeas corpus issues Dismissed Denied on merits Granted on merits Remanded to State courts Number of issues

Percent of issues 63% 35 1 1 5,167

Virtually all other issues were denied on their merits. The court granted 1% of the issues and remanded another 1% to the State courts for further proceedings.

The reasons for the dismissals further illuminates the landscape. The majority of the dismissals were for failure to exhaust State remedies prior to filing the habeas corpus Percent of Reason for dismissal of habeas corpus issues issues Failure to exhaust State remedies 57% 12 Procedural default 7 Failure to meet court deadlines or court rules 6 Issues not cognizable 5 Abuse of the writ 4 Government's motion to dismiss granted 3 Prisoner not in custody 3 Successive petition 1 Jurisdictional bar 1 Petition is moot 3 Other reasons (such as prisoner moves to dismiss) Number of issues

3,068

Federal Habeas Corpus Review 17

petition in Federal court (57%). Failure to exhaust is a main procedural foundation of habeas corpus litigation.

The exhaustion doctrine requires the prisoner to present the same issues to a State court for its review before seeking Federal review. All issues in a habeas corpus petition must have had State review. If some issues have been exhausted but others have not, the Federal court shall dismiss the entire petition.12 A prisoner might amend the petition and delete the unexhausted claims instead of returning to State court. However, by taking this action, the prisoner runs the risk of having any unexhausted claims that are eventually filed in Federal court dismissed by the court because such “piece-meal litigation” is considered an “abuse of the writ.”13 Yet, as the above data show, dismissals for abuse of the writ were a small percentage of dismissals (5%), and the risk from presenting claims separately was only theoretical, not actual.

In addition to the exhaustion doctrine, there are other indications that many petitions do not meet basic substantive and procedural requirements of habeas corpus. Five reasons together accounted for approximately 18% of the dismissals: failure to comply with court rules, failure to raise a cognizable issue, failure of the prisoner to be in custody, failure to raise issues that are within the court's jurisdiction, and the moot character of the issues presented.

Other doctrines that limit the scope of Federal review include the doctrines of procedural default, successive petition, and abuse of the writ. A procedural default occurs 12

Rose v Lundy, 455 U.S. 509 (1982).

Rose v. Lundy (1982). See also 28 U.S.C. § 2254 (Rule 9(b).

13

18 Challenging State Court Criminal Convictions

when the prisoner has failed to comply with State procedural rules on how the issues must be raised.14 The U.S. Supreme Court has decided that unless the prisoner can show “cause” and “prejudice,” procedural default in State court will bar Federal review. Failure to comply with State procedures must have been due to more than inadvertent error and the failure must have had serious negative consequences to the prisoner.15 These three doctrines are believed to be more restrictive than the exhaustion doctrine: procedural defaults accounted for the 12% of dismissals; successive petitions, 3%; and abuse of the writ, 5% of dismissals. The successive petition doctrine bars a petition that raises the same issues that were raised, and rejected, in a previous petition.16 Neither this doctrine nor the abuse of writ doctrine, which was discussed above, affected a large number of petitions.

Finally, once a case reaches the Federal district court, there are substantial differences in the pace at which habeas corpus petitions are processed by the Federal district courts (figure 1). The median case processing time for all sampled habeas petitions was about 6 months. Ten percent of the petitions were disposed of in 29 or fewer days, and 10% took more than 761 days, or more than 2 years, to resolve.

14

Francis v. Henderson, 114 U.S. 233 (1976).

Wainwright V. Sykes, 433 U.S. 72 (1977).

16 Sanders v. U.S. (1963).

15

Federal Habeas Corpus Review 19

Number of days 1,000 950 900 850 800 750 700 650 600 550 500 450 400 350 300 250 200 150 100 50 0

761 days (90th percentile)

379 days (75th percentile)

175 days (50th percentile) 83 days (25th percentile) 29 days (10th percentile)

The box represents the processing time in days for most of the habeas corpus petitions  between 25% of the cases processed within 83 days and 75% of the cases processed within 379 days. The line across the box is the median or 50th percentile at 175 days. The 10th percentile lies at the end of the line extending from the bottom of the box, and the 90th percentile, the line from the top of the box.

Figure 1. Processing time for habeas corpus petitions

20 Challenging State Court Criminal Convictions

Federal review processing time Timeliness is an underlying issue in the debates over the institutional role, efficiency, and administration of Federal review. Differences of opinions concerning timeliness are captured in three sets of explanations for the time that the Federal district courts take to review State court convictions.

One explanatory perspective rests, to a large measure, on the belief that most challenges to criminal convictions lack merit and are frivolous because the prisoner has virtually nothing to lose and something to gain by raising legal challenges endlessly (such as Carrington, Meador, Rosenberg, 1974; Wold, 1978). A popular extension of this perspective is that habeas corpus litigation comprises cases that acquire lives of their own, and that the Federal district courts are powerless to intercede and influence positively the pace at which cases move toward disposition.

A second explanatory perspective is that particular characteristics of habeas petitions influence case processing time.

The assumption that certain characteristics delimit case complexity and influence processing time is a working hypothesis in studies of civil litigation. The characteristics frequently examined are the areas of law, number of parties, amount of controversy, and so forth. In the particular context of habeas corpus litigation, the case characteristic generally believed to be the most important factor is the sentence imposed on the prisoner.

Specifically, the prevailing view is that death-penalty cases consume the most time and that almost all noncapital habeas petitions are treated routinely. Proponents of this perspective believe that other case characteristics commonly Federal Habeas Corpus Review 21

associated with death-penalty sentences (that is, jury trials and homicide offenses) add their influence. This contention has dominated policy discussions about habeas corpus petitions. Both liberals and conservatives focus on the uniqueness and time consuming nature of capital habeas corpus cases. While they may disagree on whether to expand or restrict the scope of Federal habeas corpus review, liberals and conservatives appear to agree that deathpenalty cases take more time to resolve than other cases.

Finally, there is the perspective grounded in basic principles of court administration. Variation in the case processing time reflects substantial differences in case complexity, and courts should devote their time in proportion to that complexity (Solomon and Somerlot, 1987). This principle rests on the assumption that the routine cases involve issues of settled law and uncomplicated facts. Other cases are considered complex because the issues require detailed interpretation of existing laws or call for interpretations in areas of unsettled law or are based on complicated and disputed facts.

According to this approach, the Federal courts respond to the complexity and subtlety of legal issues and facts arising from the type of claim, the underlying trial proceeding, or sentence. Courts purposively devote the amount of time required (that is, ordering the government to prepare special reports, appointing counsel, scheduling and holding evidentiary hearings, and taking matters under advisement) to resolve unsettled issues or uncomplicated facts. This perspective, which guides the current research, is difficult to measure directly. However, in the context of habeas corpus litigation, indirect measures include the number of issues in the petition, whether the petition reaches a basic threshold and is decided on the merits, whether evidentiary hearings are held, and whether the court requests counsel 22 Challenging State Court Criminal Convictions

to represent the prisoner. Single-issue petitions that are dismissed are hypothesized to take less time to review than multiple-issue cases decided on the merits with the appointment of counsel and the holding of evidentiary hearings adding their influence.

Three factors that are generally believed to have a determinative effect on case processing time in other areas of civil litigation  the type of issues, the manner of disposition, and the number of issues per petition  also affect case processing time in Federal habeas litigation. For example, among the sample cases, issues of prosecutorial misconduct (608 days), fifth amendment claims (560 days), trial court error (559 days), and ineffective assistance of counsel (555 days) took the longest mean processing time to process. Cases that met all procedural requirements and were

Type of habeas corpus issue Prosecutorial misconduct 5th amendment Trail court error Ineffective assistance of counsel 6th amendment 4th amendment Other 8th amendment 14th amendment

Average (mean) number of days to resolve habeas corpus cases 608 days 560 559 555 547 533 498 494 493

Manner of disposition Considered on the merits Not considered on the merits

477 days 268

Number of issues Single issue Two Three or more

211 days 270 359

Federal Habeas Corpus Review 23

considered on the merits took longer, on average, to process than cases that failed to meet the threshold requirements (477 versus 268 days). Petitions with three or more issues took longer, on average (359 days), to dispose of than one- (211 days) or two- (270 days) issue petitions.

The findings regarding the type of issue and the number of issues per case confirm both the experience of practitioners and prior research on the pace of civil litigation. The impact on processing time of the threshold factor of dismissed versus decided-on-the-merits seems no less intuitive. Yet, despite the independent and significant impact of the type of issue, it appears that the effect of the number of issues per petition and the threshold factor produce greater differences in case processing time than does the type of issue.

The types of issues and the manner of disposition have an independent effect on the pace of Federal habeas litigation when the number of issues per petition are taken into account. Three-issue petitions took longer to resolve, on average, than one- or two-issue petitions for all of the issue Average (mean) number of days to resolve habeas corpus cases, by the number of issues raised Type of habeas corpus issue Single 2 issues 3 or more 313 days 415 days Ineffective assistance of counsel 276 days 296 303 421 Trial court error 208 292 450 Prosecutorial misconduct 126 207 332 4th amendment 256 250 368 5th amendment 230 248 375 6th amendment 165 218 330 8th amendment 183 242 358 14th amendment 172 279 392 Other Manner of disposition Considered on the merits Not considered on the merits

178 days 291

217 days 369

24 Challenging State Court Criminal Convictions

303 days 532

categories. For example, petitions with three separate ineffective assistance of counsel issues took, on average, 415 days, compared to 313 days for those with two issues and 276 days for those with one issue.

The determinants of the pace of Federal review include not only the number and types of issues. The most serious offense at conviction also affects case processing time.

Generally, the more serious the offense, the longer the time taken by the Federal courts to resolve the petition. For the sampled cases, habeas corpus petitions arising from homicide convictions involving three or more issues took an average 436 days. Those habeas petitions arising from "Other" offenses and involving only one issue took, on average, 185 days to resolve.

Average (mean) number of days to resolve habeas corpus cases, by the number of issues raised Single 2 issues 3 or more 251days 334 days 436 days 260 305 369 222 240 349 185 260 247

Type of offense Homicide Other violent crimes Burglary/Drugs/Weapons Other offenses

Both the number of issues per petition and the type of sentence have independent effects on case processing time.

Multiple-issue habeas petitions involving a death-penalty sentence took 925 days, on average. Whereas single-issue Average (mean) processing time Issues per petition

Term of years

Life

Death

One Two Three or more

224 days 270 344

299 days 364 424

184 days 157 925

Federal Habeas Corpus Review 25

petitions involving a prison sentence took an average of 224 days to resolve and single issue petitions involving a life sentence took 299 days, single issue death-penalty petitions took 184 days to resolve. This suggests that habeas petitions involving death-penalty cases are not uniformly different from other habeas petitions that involve other types of sentences.

Petitions involving each of the three basic types of sentences are similar in that some of each type are disposed of either in a short time or after a long period. This pattern suggests that Federal district courts do not focus exclusively on cases with a particular sentence, but rather, that all petitions, whether or not they involve death-penalty sentences, receive individual attention and that this attention is governed by the complexity of the case.

This specific finding is worth noting in view of the policy debate about Federal review of habeas corpus. Policymakers, judges, and lawyers rightly are concerned about the handling of death-penalty petitions. However, the idea that petitions arising from death-penalty sentences acquire lives of their own and consume disproportionately more Federal district court time and resources is not supported by the information gathered from the nine selected States. Factors other than the nature of a prisoner's sentence have greater significance in influencing the length of Federal review, at least at the Federal district court level. With respect to the impact of the sentence itself among the sampled cases, moreover, whether a sentence was for life affected case processing time more than if it were a death sentence.

More generally speaking, the analysis of data supports a contention that the Federal review process is responsive to case complexity and that the courts use their discretion to allocate resources, such as the holding of evidentiary 26 Challenging State Court Criminal Convictions

hearings and the appointment of counsel, where the need exists to resolve complex or unclear issues of fact and law.

Petitions that lack an adequate basis in law or fact are dismissed early in the review process. Those petitions satisfying basic substantive and procedural requirements are resolved on the merits according to their degree of complexity.

Finally, what accounts for case processing time when all of the possible determinants are taken into account simultaneously? The answer from a statistical analysis of the data collected in the nine selected States is that measures of case complexity  number of issues, whether the petition is decided on the merits, the appointment of counsel, and the holding of an evidentiary hearing  far outweigh the influence of case characteristics  the most serious offense at conviction, whether the sentence was death, life in prison, or a term of years, and whether the trial court proceeding was a jury trial or a guilty plea.

Hence, the best explanation, fitting the data most closely, is that variation in case processing time occurs because Federal district courts devote time in proportion to the demands of individual cases. The data do not support the contentions that the Federal courts are responding primarily to case characteristics and that the Federal courts lack control over the resolution of habeas corpus petitions. (Specific results from a regression analysis of case processing time data are available from the authors. Those results are also expected to appear in future publications.)

Federal Habeas Corpus Review 27

Conclusions Debate and discussion concerning the Federal review of State court criminal convictions will continue long after publication of this report because issues of federalism, finality, and individual constitutional rights are unlikely to be settled completely. However, the current research provides three contributions to a fuller understanding of the Federal review process. They are  (1) The Federal courts appear to be devoting time according to the complexity of the issues brought before them.

All cases might receive individual attention, but the amount of attention is proportionate to what attention the petitions require.

(2) Petitions that are given the least amount of time are those that fail to meet basic requirements (that is, exhaustion of State remedies or procedural default) which account for two-thirds of the petitions.

(3) For petitions that are decided on the merits, the time of the Federal courts is driven by case complexity, which is not necessarily related to objective factors, such as the type criminal offense, the nature of the sentence, underlying trial court proceeding, or type of issue. As a result, the significance of death-penalty sentences in determining case processing time may be less than commonly believed.

Three implications for broader policy discussion and future research emerge from these findings. One implication concerns the efficiency of the Federal review process. Without subscribing to a particular point of view on the scope of Federal review, systematic evidence implies that the existing process meets fundamental standards of fairness and efficiency. Federal court responsiveness to case complex- ity 28 Challenging State Court Criminal Convictions

comports with established court performance standards that every case receives individual attention without regard to legally irrelevant factors.17 A second implication concerns the attention given to deathpenalty litigation. Attention rightly is given, but the findings are a note of caution against an exclusive focus on death-penalty appeals in habeas corpus reform. In the nine selected States, which all have the death penalty as a criminal sanction, the case processing time is longer for petitions arising from life imprisonment sentences than from petitions arising from death-penalty sentences. With wider adoption of habitual offender laws, even more petitions should be expected from the type of prisoners whose petitions are currently driving the elapsed time of Federal review. Consequently, policymakers, judges, and lawyers might want to take this broader view of litigation into account as they fashion reforms in court procedures and doctrines.

The third implication concerns the basic institutional role of Federal court review. Evidence from the nine States suggests that Federal review is neither disruptive of State court convictions nor is it a chaotic process that is out of control. State court convictions are not overturned routinely even though the Federal review process gives individual attention to all cases in conformity with basic standards of court performance. Furthermore, while Robinson found in 1979 that the average time from conviction to the filing of a Federal habeas was a year and a half, the present finding of upwards of 5 years for the average elapsed time from the date of conviction to the filing of a Federal habeas (while possibly reflecting several trends 17

See Standard 3.3. National Center for State Courts (1992).

Federal Habeas Corpus Review 29

in the State courts over the last 15 years) suggests that the amount of resources States devote to direct appeals and other post-conviction litigation is hardly trivial. These observations imply that State trial courts properly adjudicate all Federal claims that arise during State criminal proceedings and that the States expend a significant amount of resources providing forums for direct and collateral challenges to trial court outcomes.

The thoroughness of the Federal review process affirms the correctness of the State actions being challenged. Police, prosecutors, defense counsel, and State courts appear to be fulfilling their criminal detection, prosecutorial, and adjudicatory functions without abridging individual Federal constitutional rights. However, such a finding is not cause for asserting that the work of the Federal courts is unnecessarily duplicative. The present debate surrounding Federal habeas corpus review reflects the acceptance of the extensive constitutional rights for criminal defendants that the Supreme Court created in the 1960's, which are the basis for the issues raised in habeas corpus petitions. Few policymakers advocate broad, nonsymbolic attempts to alter this body of constitutional rights.

Yet, it seems in the interest of both the State and Federal judiciaries to seek some substantive balance that can simultaneously avoid unnecessary court review and protect individual constitutional rights. As Supreme Court Associate Justice Sandra Day O'Connor (1981) said, the concept of deference to adequate State court processes that provide full and fair adjudication should be an appropriate item on the agenda of habeas corpus reform.

30 Challenging State Court Criminal Convictions

References Bator, Paul M. (1963) “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harvard Law Review 441.

Carrington, Paul D., Daniel Meador, and Maurice Rosenberg (1976) Justice on Appeal. West Publishing Company. St. Paul.

Faust, Richard, Tina J. Rubenstein, and Larry L. Yackle (1990-91) “The Great Writ in Action: Empirical Light on the Federal Corpus Debate,” 18 New York University Review of Law and Social Change 649.

Flango, Victor E. (1994) Habeas Corpus in State and Federal Courts. National Center for State Courts.

Williamsburg.

Hanson, Roger A. and Henry W.K. Daley (1994) Challenging the Conditions of Confinement.

U.S. Department of Justice. Washington, D.C. Hanson, Roger, William E. Hewitt, Brian J. Ostrom, and Christofer Lomvardias (1992) Indigent Defenders Get the Job Done and Done Well. National Center for State Courts. Williamsburg.

National Center for State Courts (1990) Trial Court Performance Standards. National Center for State Courts. Williamsburg.

National Center for State Courts (1995) State Court Caseload Statistics: Annual Report 1993. National Center for State Courts. Williamsburg.

O'Connor, Sandra Day, (1981) “Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge,” 22 William and Mary Law Review 801.

Robinson, Paul (1979) An Empirical Study of Federal Habeas Corpus Review of State Court Judgments.

U.S. Justice Department. Washington, D.C. Federal Habeas Corpus Review 31

Shapiro, David L. (1973) “Federal Habeas Corpus: A Study in Massachusetts,” 87 Harvard Law Review 321.

Solomon, Maureen and Douglas K. Somerlot (1987) Caseflow Management in the Trial Court: Now and for the Future. American Bar Association. Chicago.

Wold, John T. (1978) “Going Through the Motions: The Monotony of Appellate Court Decision-Making,” Judicature 58.

Yackle, Larry W. (1985) “Explaining Habeas Corpus,” 60 New York University Law Review 991.

32 Challenging State Court Criminal Convictions

Acknowledgments Many individuals contributed to the research reported in this discussion paper. Cooperation from Federal court officials enabled the project staff of the National Center for State Courts (NCSC) to gather information from individual case files. Among the many people in each court that provided assistance, special thanks go to the following: Lois S. Bloom Senior Pro se Staff Attorney Southern District of New York

James Parkinson Clerk of Court, Southern District of New York

Robert C. Heinemann Clerk of Court, Eastern District of New York

Emily Patt, Luis Hernandez, and Marie Louise Caro, Staff Attorneys, Northern District of California

Thomas C. Caver Clerk of Court, Middle District of Alabama

The Honorable Charles S. Coody U.S. Magistrate Judge, Middle District of Alabama

Deborah S. Hunt Clerk of Court, Southern District of Alabama

David M. Baldwin Staff Attorney, Northern District of Texas

Nancy Doherty Clerk of Court, Northern District of Texas

David J. Bradley Chief Deputy Clerk, Southern District of Texas

David L. Edwards Clerk of Court, Middle District of Florida

Sheila F. McNeill Staff Attorney, Middle District of Florida

Richard T. Martin Clerk of Court, Middle District of Louisiana

Geraldine J. Crockett Clerk of Court, Northern District of Indiana

A. Victoria Thevenow Clerk of Court, Southern District of Indiana

Robert D. St. Vrain Clerk of Court, Eastern District of Missouri

Judy Carter Staff Attorney, Western District of Missouri

Michael E. Kunz Clerk of Court, Eastern District of Pennsylvania

Joseph Rodgers Adminstrative Supervisor, Eastern District of Pennsylvania

Alfred L. Wilson Clerk of Court, Western District of Pennsylvania

Robert Barth Operations Manager, Western District of Pennsylvania

T.G. Cheleotis Clerk of Court, Southern District of Florida

Federal Habeas Corpus Review 33

Additionally, a cadre of advanced law students provided skillful and thoughtful assistance in reviewing case files in each of the U.S. district court sites. Charles Rohde, Thomas Johnson, and Thomas Joss were the researchers that every project director yearns to recruit and rely on.

Colleagues at the NCSC critiqued the report. Appreciation is extended to Victor Flango, Brian Ostrom, and David Rottman for willingness to read successive drafts. Lisa Ghee is also thanked for cheerfully preparing the drafts.

The Bureau of Justice Statistics is thanked for its financial support and editorial assistance. Carol Kaplan and Steve Smith were project monitors, and Tom Hester was editor.

Yvonne Boston, under supervision of Marilyn Marbrook, produced the report.

Finally, very few studies of litigation can be accomplished without the help of David Cook, Chief of the Analytical Services Office, Administrative Office of the U.S. Courts.

Mr. Cook enabled the project staff to draw samples of cases based on computerized lists of all disposed cases in every U.S. district court. He is valued more than he knows.

34 Challenging State Court Criminal Convictions

Attachment C Application for Writ of Habeas Corpus

Page 61 of 66

IN THE SUPERIOR COURT OF STATE OF GEORGIA , Petitioner , Inmate Number vs. , Warden , Respondent (Name of Institution where you are now located)

Civil Action No.

Habeas Corpus

APPLICATION FOR WRIT OF HABEAS CORPUS PART I: BACKGROUND INFORMATION ON YOUR CONVICTION 1.

Name, county, and court which entered the judgment of conviction under attack :

2.

3.

4.

Date of conviction : Length of sentence(s) : Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? G Yes G No Name of offense(s). List all counts :

5.

6.

What was your plea? Please check one : G Guilty G Guilty but mentally ill G Nolo contendere G Not guilty If you entered a guilty plea to one count or indictment, and a not guilty or nolo contendere plea to another count or indictment, give details :

7.

Kind of trial. Please check one : G Jury G Judge only Did you testify at the trial? G Yes G No Did you appeal from the conviction? G Yes If you did appeal, answer the following : Name of appellate court to which you appealed : Result of appeal : Date of result :

8.

9.

10.

Administrative Office of the Courts (Revised 02-15-00)

G No

Form HC-1

11.

Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this conviction in any state or federal court?

G Yes G No

12.

If your answer to 11 was “Yes�, give the following information : (Note: if more than three petitions, please use a separate sheet of paper and use the same format to list them.)

A. Name of court and case number : What kind of case or action was this?

All grounds raised (attach extra sheet of paper if necessary) :

Did a judge hear the case? G Yes Name of Judge : Result : Date of result :

G No

Did witnesses testify? G Yes

G No

B. As to any second petition, application or motion, give the same information.

Name of court and case number : What kind of case or action was this?

All grounds raised (attach extra sheet of paper if necessary) :

Did a judge hear the case? G Yes Name of Judge : Result : Date of result :

G No

Did witnesses testify? G Yes

G No

C. As to any third petition, application or motion, give the same information.

Name of court and case number : What kind of case or action was this?

All grounds raised (attach extra sheet of paper if necessary) :

Did a judge hear the case? G Yes Name of Judge : Result : Date of result :

G No

Did witnesses testify? G Yes

G No

D. Did you appeal to the Georgia Supreme Court or the Georgia Court of Appeals from the result taken on any petition, application or motion listed above?

First petition, application or motion : G Yes G No Second petition, application or motion: G Yes G No Third petition, application or motion: G Yes G No

Administrative Office of the Courts (Revised 02-15-00)

-2-

Form HC-1

E. If you did not appeal from the denial of relief on any petition, application or motion, explain briefly why you did not :

F. If you appealed to the highest state court having jurisdiction, did you file a petition for certiorari in the United States Supreme Court to review the denial of your petition by the Georgia Supreme Court or the Georgia Court of Appeals? G Yes G No 13.

Do you have any petition or appeal now pending in any court, either state or federal, as to the conviction under attack? G Yes G No

14.

Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein : At preliminary hearing : At arraignment and plea : At trial : At sentencing : On appeal : In any post-conviction proceeding : On appeal from any adverse ruling in a post-conviction proceeding :

15.

Do you have any other sentence, either state or federal, to serve after you complete the sentence imposed by the conviction under attack?

G Yes G No If so, give the name and location of the court(s) which imposed any other sentence :

And give the date and length of any other sentence to be served : Have you filed, or do you contemplate filing, any petition attacking the judgment(s) which imposed any other sentence?

G Yes G No

Administrative Office of the Courts (Revised 02-15-00)

-3-

Form HC-1

PART II: STATEMENT OF YOUR CLAIMS State concisely every ground on which you now claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same.

1.

GROUND ONE :

SUPPORTING FACTS. (Tell your story briefly without citing cases or law) :

2.

GROUND TWO :

SUPPORTING FACTS. (Tell your story briefly without citing cases or law) :

3.

GROUND THREE:

SUPPORTING FACTS. (Tell your story briefly without citing cases or law) :

4.

GROUND FOUR:

SUPPORTING FACTS. (Tell your story briefly without citing cases or law) :

Administrative Office of the Courts (Revised 02-15-00)

-4-

Form HC-1

PART III: OTHER CLAIMS NOT PRESENTED TO A COURT BEFORE THIS If any of the grounds listed in PART II were not previously presented in any other court, state or federal, state briefly what grounds were not so presented, and give your reasons for not presenting them:

Wherefore, petitioner prays that the Court grant relief to which the petitioner may be entitled in this proceeding.

Date

Signature and Address of Petitioner’s Attorney (if any attorney) I declare ( or certify, verify, or state) under penalty of perjury that the foregoing statements made in this Application for Writ of Habeas Corpus are true and correct.

Executed on Date

Sworn to and subscribed before me this _______ day of _____________________, 20_______.

Signature of Petitioner

______________________________________________________ Notary Public or Other Person Authorized to Administer Oaths

Please note that under O.C.G.A.§9-14-45 service of a petition of habeas corpus shall be made upon the person having custody of the petitioner. If you are being detained under the custody of the Georgia Department of Corrections, an additional copy of the petition must be served on the Attorney General of Georgia. If you are being detained under the custody of some authority other than the Georgia Department of Corrections, an additional copy of the petition must be served upon the district attorney of the county in which the petition is filed. Service upon the Attorney General or the district attorney may be had by mailing a copy of the petition and a proper certificate of service.

Administrative Office of the Courts (Revised 02-15-00)

-5-

Form HC-1

Attachment D Petition for Writ of Habeas Corpus By a Person in State Custody

Page 62 of 66

AO 241 (Rev. 01/15)

Page 1

Petition for Relief From a Conviction or Sentence By a Person in State Custody (Petition Under 28 U.S.C. ยง 2254 for a Writ of Habeas Corpus)

Instructions 1.

To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief.

2.

You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. ยง 2255 in the federal court that entered the judgment.

3.

Make sure the form is typed or neatly written.

4.

You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.

5.

Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.

6.

You must pay a fee of $5. If the fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $ , you must pay the filing fee.

7.

In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition.

8.

When you have completed the form, send the original and Court at this address:

copies to the Clerk of the United States District

Court for Clerk,Clerk, UnitedUnited States States DistrictDistrict Court for Address Address Zip Code City, City, State State Zip Code If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the court to file-stamp it and return it to you.

9.

CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.

10.

CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.

AO 241 (Rev. 01/15)

Page 2

PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY District:

United States District Court Name (under which you were convicted):

Docket or Case No.:

Place of Confinement :

Prisoner No.:

Petitioner (include the name under which you were convicted)

Respondent (authorized person having custody of petitioner) v.

The Attorney General of the State of:

PETITION

1.

(a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know): 2.

(a) Date of the judgment of conviction (if you know): (b) Date of sentencing:

3.

Length of sentence:

4.

In this case, were you convicted on more than one count or of more than one crime?

5.

Identify all crimes of which you were convicted and sentenced in this case:

6.

(a) What was your plea? (Check one)

’

Yes

’ (1)

Not guilty

’

(3)

Nolo contendere (no contest)

’ (2)

Guilty

’

(4)

Insanity plea

’ No

AO 241 (Rev. 01/15)

Page 3

(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to?

(c) If you went to trial, what kind of trial did you have? (Check one) ’ Jury 7.

Did you testify at a pretrial hearing, trial, or a post-trial hearing? ’ Yes

8.

’ No

Did you appeal from the judgment of conviction? ’ Yes

9.

’ Judge only

’ No

If you did appeal, answer the following: (a) Name of court: (b) Docket or case number (if you know): (c) Result: (d) Date of result (if you know): (e) Citation to the case (if you know): (f) Grounds raised:

(g) Did you seek further review by a higher state court?

If yes, answer the following: (1) Name of court: (2) Docket or case number (if you know): (3) Result:

(4) Date of result (if you know):

’ Yes

’

No

AO 241 (Rev. 01/15)

Page 4

(5) Citation to the case (if you know): (6) Grounds raised:

(h) Did you file a petition for certiorari in the United States Supreme Court?

’

Yes

’ No

If yes, answer the following: (1) Docket or case number (if you know): (2) Result:

(3) Date of result (if you know): (4) Citation to the case (if you know): 10.

Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court?

11.

’ Yes

’

No

If your answer to Question 10 was "Yes," give the following information: (a)

(1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes

’ No

(7) Result: (8) Date of result (if you know):

AO 241 (Rev. 01/15)

Page 5

(b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes

’ No

(7) Result: (8) Date of result (if you know): (c) If you filed any third petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

AO 241 (Rev. 01/15)

Page 6

(6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes

’ No

(7) Result: (8) Date of result (if you know): (d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion?

(1) First petition:

’ Yes

’

No

(2) Second petition:

’ Yes

’

No

(3) Third petition:

’ Yes

’

No

(e) If you did not appeal to the highest state court having jurisdiction, explain why you did not:

12.

For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.

CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.

GROUND ONE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground One, explain why:

AO 241 (Rev. 01/15)

(c)

Page 7

Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue?

’

Yes

’ No

(2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes

’ No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

’

Yes

’ No

(4) Did you appeal from the denial of your motion or petition?

’

Yes

’ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

’

Yes

’ No

(6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

AO 241 (Rev. 01/15)

Page 8

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One:

GROUND TWO:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Two, explain why:

(c)

Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue?

’

Yes

’ No

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes

’ No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision:

AO 241 (Rev. 01/15)

Page 9

Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

’

Yes

’ No

(4) Did you appeal from the denial of your motion or petition?

’

Yes

’ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

’

Yes

’ No

(6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Two :

GROUND THREE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

AO 241 (Rev. 01/15)

Page 10

(b) If you did not exhaust your state remedies on Ground Three, explain why:

(c)

Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue?

’

Yes

’ No

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes

’ No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

’

Yes

’ No

(4) Did you appeal from the denial of your motion or petition?

’

Yes

’ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

’

Yes

’ No

(6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

AO 241 (Rev. 01/15)

Page 11

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three:

GROUND FOUR:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c)

Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue?

’

Yes

’ No

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes

’ No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition:

AO 241 (Rev. 01/15)

Page 12

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

’

Yes

’ No

(4) Did you appeal from the denial of your motion or petition?

’

Yes

’ No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

’

Yes

’ No

(6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four:

AO 241 (Rev. 01/15)

13.

Page 13

Please answer these additional questions about the petition you are filing: (a)

Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction?

’ Yes

’

No

If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them:

(b)

Is there any ground in this petition that has not been presented in some state or federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:

14.

Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition?

’

Yes

’ No

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available.

15.

Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging?

’

Yes

’ No

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised.

AO 241 (Rev. 01/15)

16.

Page 14

Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing:

(b) At arraignment and plea:

(c) At trial:

(d) At sentencing:

(e) On appeal:

(f) In any post-conviction proceeding:

(g) On appeal from any ruling against you in a post-conviction proceeding:

17.

Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging?

’ Yes

’

No

(a) If so, give name and location of court that imposed the other sentence you will serve in the future:

(b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future?

18.

’ Yes

’

No

TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.*

AO 241 (Rev. 01/15)

Page 15

* The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. ยง 2244(d) provides in part that: (1)

A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A)

the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B)

the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;

(C)

the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D)

the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

AO 241 (Rev. 01/15)

Page 16

(2)

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Therefore, petitioner asks that the Court grant the following relief:

or any other relief to which petitioner may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on

Executed (signed) on

(month, date, year).

(date).

Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition.

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