What is habeas corpus?
“Habeas corpus” is a writ utilized to bring a person before a court, most frequently to ensure that a person’ s imprisonment or detention is not illegal. A writ is an order by a court requiring that something be done.
What laws guarantee habeas corpus?
There are two major sources of law, on two different legal levels, that justify habeas corpus (ALL):
State Level: Chapter 248 of the Massachusetts General Laws details the privilege of the writ of habeas corpus.
The Massachusetts Constitution also states:
“The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.”
In other words, ALL residents of the Commonwealth receive habeas corpus.
Federal Level: The US Constitution states that:
“The privilege and writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
In other words, habeas corpus remains unless the United States is facing a rebellion or invasion.
What does a writ of habeas corpus do?
Moreover, a writ can:
- Test the legality of an arrest or commitment
- Obtain a judicial review of:
- The regularity of the extradition process
- The right to or amount of bail
- The jurisdiction of the court that has imposed a criminal sentence
Who can issue a writ of habeas corpus?
A a writ of habeas corpus may issue by:
- The Massachusetts Supreme Judicial Court
- Massachusetts Superior Courts
- A Probate Court in the Commonwealth
- Any District Court in the Commonwealth
- By judges of any of the previously listed courts
Are there consequences for NOT obeying a writ of habeas corpus?
YES, there are consequences for both the person receiving the writ and any officer involved in NOT obeying it.
If a person for whom a writ is directed refuses to receive it, or neglects to execute it, and there is no sufficient excuse for him or her doing so, the person in noncompliance is in contempt of court. Consequentially, the court or justice for whom the writ was returnable is then allowed to do BOTH of the following (ALL):
- Compel obedience to the writ
- Punish the person guilty of the contempt
By “compelling obedience” a court or judge can bring the prisoner before a court or a judge. The court or judge then has the option of either denying or granting bail.
To “punish”, a court or judge may impose a fine on the person in violation of the writ. There is a $400 penalty for refusing or neglecting to receive and execute a writ.
What should a person issued a writ of habeas corpus do?
No person can be deprived of his or her liberty or held in custody by any person or in any place against his or her will, except by due process of law. The ONLY exception to this is for people who have been legally convicted of a crime and are serving a sentence.
If a person has reason to believe that another person has been illegally deprived of his or her liberty or is being held unlawfully in custody, he or she has a right to petition for that person’s freedom. Such a petition must include ALL of the following information:
- The name of detainee
- The age of the detainee
- A general description of the detainee
- Where, when, and under what circumstances the person loses his or her liberty
- The location of detention
- The name of the person depriving him or her of his or her liberty
IF YOU OR A LOVED ONE HAVE BEEN DEPRIVED OF THE RIGHT TO DUE PROCESS, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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