Habeas Corpus Research Articles

Intersectionality—An Alternative to Redrawing the Line in the Pursuit of Animal Rights

In recent years, the field of animal rights has increasingly focused on trying to change the legal status of animals from things to rights-bearing legal persons. This has most prominently been seen in the work of Steven Wise and the Nonhuman Rights Project (NhRP). The NhRP has initiated various habeas corpus proceedings on behalf of certain animals who it argues are entitled the status of legal persons and the fundamental right to bodily liberty. The NhRP appeals to existing principles of common law. It argues that its animal clients are 'practically autonomous,' which, it asserts, is sufficient for them to be entitled to the status of legal persons and to the fundamental right to bodily liberty. Herein, the author argues that whilst Wise and the NhRP have garnered a significant amount of mainstream attention in the animal rights field, less mainstream attention has been paid to understanding how our treatment of some groups of humans and all animals are connected, and how having a deeper understanding of this could assist in producing better strategies for legal change. In this article, the author considers the status quo treatment of animals by reference to the concept of dualistic thinking and explores how the status quo is underpinned by anthropocentrism. In light of these observations, the author critiques the work of Steven Wise and the NhRP by considering how this approach perpetuates the same anthropocentric ideals that underpin the status quo treatment of animals. The author ultimately advocates for an intersectional approach to seeking legal reform and discusses what legal change might look like if an intersectional approach is adopted.

Sidestepping the Charter, Again: Muting the Right to Habeas Corpus in Canada (Public Safety and Emergency Preparedness) v. Chhina

Sidestepping the Charter, Again: Muting the Right to Habeas Corpus in Canada (Public Safety and Emergency Preparedness) v. Chhina

The Lincoln Administration and Freedom of the Press in Civil War Maryland

Across all of American history, the accumulation of state power during times of war and national emergency has been the most destructive threat to freedom of the press. Clashes between the government and the press have occurred as early as the Quasi-War with France and recently as the War on Terror. Freedom of the press came under sustained assault during World War I and again during the Vietnam War. But perhaps the most outrageous violations of freedom of the press came during the Civil War. Although suppression of freedom of the press by the Lincoln Administration took place across a broad swath of the Union, the battle between government and press was particularly acute in border states because of their slave populations and secessionist sentiments. In particular, Maryland presented a complex challenge to President Lincoln during the Civil War. The people of the slaveholding state were sympathetic to the South, but its economy was becoming increasingly integrated with the industrial North. Most importantly, Maryland's strategic location placed it on three sides of Washington, D.C.; and its secession would leave the national capital completely surrounded by the Confederacy. Deciding that the loss of the capital would be intolerable to the war effort, the Lincoln administration suspended the writ of habeas corpus as part of a larger, deliberate campaign to keep Maryland in the Union. The suspension was the foundation upon which the administration suppressed freedom of the press in Maryland. This strategy involved imprisonment without trial of journalists and publishers, seizing their property, deportation beyond the Federal lines, shuttering of their newspapers, and barring their publications from using the mails. These events represented among the most egregious violations of civil liberties in American history.

The Supreme Court's Attack on Habeas Corpus in DHS v Thuraissigiam

The Supreme Court's June 2020 opinion in Department of Homeland Security v. Thuraissigiam unjustifiably reopens settled questions about the Habeas Corpus Suspension Clause of the U.S. Constitution, and endangers everyone -- U.S. citizens and noncitizens alike.

The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Análisis jurídico sobre la eficacia y recurso de apelación del Habeas Corpus

The investigation focused on conducting a legal analysis on the effectiveness and appeal of habeas corpus, based on an inadequate performance of judges in the Criminal Judicial Unit of the Babahoyo Canton, Ecuador. Methodologically, it was focused on the critical legal analysis of habeas corpus as a jurisdictional guarantee in judicial practice, through the analytical-synthetic method. It was evidenced that the guarantee that allows the exercise of the right to freedom of human beings in Ecuador is being violated, which constitutes a serious violation of the presuppositions that are established as a result of the establishment of a rule of law, therefore Therefore, said violation will be obvious to those who have to resolve a request of this nature.

Guilty but Mentally Ill, Ineffective Assistance of Counsel, and Habeas Corpus

In Velazquez v. Superintendent Fayette SCI , 937 F.3d 151 (3rd Cir. 2019), the U.S. Court of Appeals for the Third Circuit considered whether a criminal defendant may petition for habeas corpus relief when counsel is ineffective for failing to object to a defective plea process during a plea of

Habeas Corpus: a Body of Art from the Incarcerated America

“I want to remind us all that art is dangerous. I want to remind you of the history of artists who have been murdered, slaughtered, imprisoned, chopped up, refused entrance. The history of art, whether it’s in music or written or what have you, has always been bloody, because dictators and people in office and people who want to control and deceive know exactly the people who will disturb their plans. » Toni Morrison Marking Time: Art in the Age of Mass Incarceration by Nicole R. Fleetwood is...

COVID-19 in Prisons: A Study of Habeas Corpus Decisions by the São Paulo Court of Justice

Brazil has become the epicenter of the COVID-19 pandemic in the Global South—a pandemic that disproportionately affects vulnerable populations, especially those detained and imprisoned. Legal institutions are struggling to respond. In this paper, we focus on the National Council of Justice’s Recommendation 62, issued March 17, 2020, which recommends that judges take several measures to reduce the risk of COVID-19 infection in prisons. We test this recommendation’s impact by looking at habeas corpus decisions in the São Paulo Court of Justice. The exploratory findings presented here indicate that Recommendation 62 has little impact on habeas decisions. In general, citing the recommendation does not lead the Court to grant early release or house arrest to those detained, and most habeas actions are decided against petitioners. This is true even when petitioners claim to be part of a risk group or their alleged offense did not involve violence or serious threat—factors that should favor habeas relief under Recommendation 62.

COVID-19 in prisons: a study of habeas corpus decisions by the São Paulo Court of Justice

Abstract Brazil has become the epicenter of the COVID-19 pandemic in the Global South-a pandemic that disproportionately affects vulnerable populations, especially those detained and imprisoned. Legal institutions are struggling to respond. In this paper, we focus on the National Council of Justice’s Recommendation 62, issued March 17, 2020, which recommends that judges take several measures to reduce the risk of COVID-19 infection in prisons. We test this recommendation’s impact by looking at habeas corpus decisions in the São Paulo Court of Justice. The exploratory findings presented here indicate that Recommendation 62 has little impact on habeas decisions. In general, citing the recommendation does not lead the Court to grant early release or house arrest to those detained, and most habeas actions are decided against petitioners. This is true even when petitioners claim to be part of a risk group, or their alleged offense did not involve violence or serious threat-factors that should favor habeas relief under Recommendation 62.

COVID-19 in prisons: a study of habeas corpus decisions by the São Paulo Court of Justice

Abstract Brazil has become the epicenter of the COVID-19 pandemic in the Global South-a pandemic that disproportionately affects vulnerable populations, especially those detained and imprisoned. Legal institutions are struggling to respond. In this paper, we focus on the National Council of Justice’s Recommendation 62, issued March 17, 2020, which recommends that judges take several measures to reduce the risk of COVID-19 infection in prisons. We test this recommendation’s impact by looking at habeas corpus decisions in the São Paulo Court of Justice. The exploratory findings presented here indicate that Recommendation 62 has little impact on habeas decisions. In general, citing the recommendation does not lead the Court to grant early release or house arrest to those detained, and most habeas actions are decided against petitioners. This is true even when petitioners claim to be part of a risk group, or their alleged offense did not involve violence or serious threat-factors that should favor habeas relief under Recommendation 62.

Evaluations of alleged torture and ill treatment in Thailand: A collection of forensic medical evidence by non-medical evaluators

Forensic medical evidence plays a critical role in the investigation and documentation of torture and ill treatment, as well as in civil reparation cases and in state monitoring mechanisms, especially if conducted on a timely basis by qualified, impartial experts. Detainees in many countries, such as Thailand, face significant barriers to access medical personnel while in custody or independent, non-governmental or impartial forensic experts. This study summarizes an effective method of collecting forensic medical evidence of torture and ill treatment by non-medical evaluators under conditions of limited access to detainees. The aim of the study was to determine the feasibility to render an expert opinion based on such documentation. We reviewed 49 non-medical forensic evaluations of alleged torture and ill treatment conducted by 11 attorneys or legal representatives in Southern Thailand between March and October 2011. Forty-four non-medical evaluations (90%) had sufficient information for the authors to formulate an opinion between the alleged abuse and the documented findings and to make a statement as to the level of consistency between them. Of these 44 evaluations, the authors determined that in 28 (70%) cases, the documented findings were highly consistent with the alleged abuse and in 13 (30%) cases, the documented findings were consistent with the alleged abuse. The study shows that non-medical evaluations conducted by attorneys and legal advocates can be a resource when individuals are denied access to forensic medical expertise. The results of a non-medical evaluation interpreted by an expert can have great evidentiary value when courts are reluctant to entertain writs of protection, such as a habeas corpus, or when states are reluctant to meet their obligations to pursue formal forensic evaluations.

Como STF e STJ decidem Habeas Corpus durante a Pandemia do COVID-19? Uma Análise Censitária e Amostral (How Do the Brazilian Supreme Court and Superior Court of Justice Decide Habeas Corpus Writs during the COVID-19 Pandemic? A Census and Sample Based Analysis)

Como STF e STJ decidem Habeas Corpus durante a Pandemia do COVID-19? Uma Análise Censitária e Amostral (How Do the Brazilian Supreme Court and Superior Court of Justice Decide Habeas Corpus Writs during the COVID-19 Pandemic? A Census and Sample Based Analysis)

Taney's Zombie: Chief Justice Roger B. Taney's Life in Maryland's Black Belt: Revelations About Dred Scott and the Still Undead Commitment to White Supremacy and Racial Hatred

Roger Taney was born and raised in Maryland’s Black Belt, a region so committed to the institution of slavery that it sought to secede from Maryland and unite with slavery-entrenched Virginia. His first teachers included a well-credentialed, but unhinged man who so fervently believed that he, like Christ, could walk on water that he drowned in the attempt. Taney’s progenitors went from indentured servant to High Sheriff of Calvert County, whose duties included the “disposal” of the colonial Anglican church’s property of women, including free white women, and their mixed race children, and slaveholding landowner married into the illustrious colonial family of Francis Scott Key. This grounding in white supremacy, slavery, and racial hatred followed Taney into his privileged rise through the Maryland legislature, into private practice, and then as Maryland attorney general and subsequently, as reward for his zealous support of Andrew Jackson in his rise to the Presidency, to the offices of U.S. attorney general, Secretary of Treasury, and finally, for almost thirty years, Chief Justice of the U.S. Supreme Court. During his long tenure as Chief Justice, the nation ran toward Civil War, and the Taney Court decided such monumental cases as the challenge of President Abraham Lincoln’s suspension of habeas corpus after a Maryland contemporary and acquaintance of Taney was arrested and held without charges for sabotage. No decision of the Taney Court is more reviled than that of Dred Scott v. Sandford, an opinion written by Chief Justice Taney and in which his familial, social, and legal history of white supremacy and racial hatred is unstintingly revealed. The final irony in the life of this infamous Chief Justice is that on his deathbed in Washington, D.C., he urgently condemned the voter suppression taking place on that day in a constitutional vote in Maryland. Today in the Black Belt and elsewhere in the nation, Taney’s zombie of white supremacy, racial hatred, and segregation walks undead, its evil spirit inflamed by hateful politically-motivated rhetoric, the imprimatur of such speakers, and cultural hatred and ignorance, and by failures of many of the avowed religious to condemn and cast out those who abominate the strength of our national values and identity. From voter suppression in North Carolina to horseback sheriff deputies leading a roped black man down to the unexamined use of predictive algorithmic systems disparately impacting the poor and people of color in bail, detention, parole, and sentencing decisions, the spirit that imbued Taney’s Dred Scott opinion and animated his life’s values remains alive within the nation’s culture and legal system. Informed with this history and reflection, perhaps we as a nation can illuminate the evil at large and finally kill off that demon and conclude, at last, the Civil War.

'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.” Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled. In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny? Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled). In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled. In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases. Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success. On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points. Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings. We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question. We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

The Traditional Concept of Habeas Corpus and Modern Dangers for Privacy Through the Use of Wearable Apps

Wearable devices (WDs) are a specific part of the general concept of the “Internet of Things”. This concept refers to infrastructure in which many sensors are designed to record, process, and store data locally, or interact with each other both in the medium range, through the use of radio frequency technologies (e.g. RFID, bluetooth, etc.), or through an electronic communications network. The devices involved are not only traditional computers or smartphones, but also daily life objects (things), such as wearable devices, home automation geo-referencing, and assisted navigation objects. Indeed, the “Internet of Things” refers to a further development of the Internet resulting from physical objects networking. These objects may be equipped with a unique identifier (for example, a serial number), recognizable even by radio frequency. However, the identification of these objects could also be made without resorting to radio tags, simply by combining sensors and automatic recognition procedures (for example, the recognition of a barcode carried out with a mobile phone connected to the Internet). The current state of research on this issue concerns mainly the use of WDs in daily life, and the enforcement of privacy rules, due to the capacity of WDs for the massive collection of personal data, such as in the health care and labour contexts, both sensitive areas for discrimination.

Habeas in Indian Country Syllabus

Habeas corpus is revered for its function as a guarantor of individual liberty against an overreaching sovereign. The Great Writ has served this function in Indian Country, but it is most often invoked in debates over the extent of tribal sovereignty and how much control the U.S. federal government has over tribes. To what sovereign a habeas petition should be submitted is a critical question, especially when two possible answers exist. This class investigates questions that revolve around this central theme of how habeas has functioned as a tool of expanding and curtailing tribal sovereignty: how have tribal members used habeas corpus throughout history? How did changing views of Indian jurisdiction over criminal matters affect the use of habeas? Is it right to place so much emphasis on habeas corpus as the only available remedy under one of the most significant pieces of federal Indian legislation, the Indian Civil Rights Act? How are tribes currently using habeas to shape debates on pressing issues such as tribal banishment, child welfare and custody, and domestic violence? How do restrictions on non-tribal habeas affect Indians in the that justice system? How do tribal courts facilitate habeas corpus petitions within the tribal justice system? This course is structured as a weekly seminar for a 13-week semester, with one class reserved for guest speakers and one reserved either for student presentations or a review session, depending on the assessment method chosen.

Inadimplência fiscal e a apropriação indébita tributária no RHC 163.334/SC

A relação entre a inadimplência fiscal e a apropriação indébita tributária, a partir do Recurso Ordinário de Habeas Corpus 163.334/SC tornou-se nebulosa, e fez o ordenamento jurídico brasileiro iniciar uma reflexão que questiona se sua utilização é abarcada pela legalidade. O objetivo deste artigo é analisar os pontos de divergência entre a decisão emanada do RHC 163.334 e as garantias constitucionais do Estado brasileiro. A metodologia utilizada foi o estudo de caso, com pesquisa bibliográfica e documental. As questões norteadoras são: a decisão que declarou crime a inadimplência de Imposto Sobre Circulação de Mercadorias e Serviços (ICMS) devidamente declarado conforma-se com o sistema de garantias constitucionais? A inadimplência de tributo amolda-se na tipificação de apropriação indébita? Portanto, é possível concluir que há uma divergência entre as características do indivíduo que se apropria de coisa alheia e do contribuinte inadimplente, qual seja, a posse de um bem que não lhe pertence.

Habeas Corpus, Its Versatility on Both Sides of the ‘Pond,’ and When Right against Remedy Becomes Quixotic

This article examines the writ of habeas corpus ad subjiciendum and notes the greater use to which the writ has been put in the United States as compared to England and Wales, as well as an interesting conceptual problem identified in the US case of Hamdi v Rumsfeld. The light shed by this discussion will assist examination of the reasons why habeas corpus ad subjiciendum has become more versatile in the United States than in England. It will be concluded that this difference reflects structural differences across the two jurisdictions, and that the writ in England and Wales – where it will be satisfactorily answered by a showing that someone is in custody pursuant to the order of a court with jurisdiction to confine him – does not need to be expanded beyond its current form, despite the greater American development of the habeas corpus concept.

Preventive Detention and Habeas Corpus: An Institutional Failure of the Supreme Court

Based on a study of all reported habeas corpus judgments of the Supreme Court in the twenty-year period from 2000 to 2019, this article presents an empirical analysis of the delay in adjudication of habeas corpus petitions in preventive detention cases. Three indicators are used for the study: first, the total time spent between the date of detention order and the date of final disposal by the Supreme Court; second, the time spent at the Supreme Court level alone; and third, the time spent in actual detention till the matter was finally disposed of by the Supreme Court (including an analysis of the extent to which Supreme Court was responsible for the delay). A more sharpened analysis of only ‘successful’ habeas corpus petitions – i.e. the twenty cases where the Supreme Court was the relief-granting court – is also presented. It is suggested that habeas corpus is reduced to a meaningless remedy in many cases.