Description

DUE 3/16/2020

When we examine the writ of Habeas Corpus it is no exaggeration to say that it is one of the most ancient and effective legal methods of dealing with the arbitrary use of government power that has been created and perpetuated in today’s domestic and international criminal justice systems. Looking into the history of this particular writ, we see that it older than the Magna Carta. The writ of Habeas Corpus establishes the process for checking into the illegal and unlawful imprisonment of an individual who has been accused of a criminal act. It has become a prominent requirement for the protection of individuals accused of crimes against nation states and in the protection of due process rights and human rights violations.

The write of Habeas corpus ad sub judiciem is a writ for a person’s release from unlawful detention by a government entity. When we examine how the writ works we see that under habeas corpus, the judge stands between the subject and any encroachment upon the subject’s liberty. This means that when any person is arrested or detained, the validity of that detention may be tested by an application for habeas corpus. If the detaining party - a government entity - does not demonstrate that there is sufficient cause for the persons continued detention, a writ of habeas corpus is issued that orders the release of the prisoner from the custody and control of the government entity that has control of the person of the accused. The granting of the writ is not a legal decision at the discretion of the court, but is available as a matter of right to the accused when the required circumstances have been demonstrated.

This reflects the law’s presumption that there is a general right to liberty unless there is a legal basis for abridging it. The burden for proving and demonstrating the legal basis for the detention is solely on the government. The right of persons arrested or detained to apply for habeas corpus is enshrined in the Bill of Rights of numerous countries and nations states throughout the world and in numerous treaties and international legislation.

When we look back into the history and the purpose of this writ, we see that its origin was not in securing freedom from detention. Rather, it was to ensure a person’s attendance before a court of law so that justice, either civil or criminal in nature, might be administered properly and also done so in their presence. It was only gradually over the passing of time that this writ began to take on a small metamorphose and ultimately emerge as a means of testing the legality of detention in a criminal case by the government representing a nation state.

An examination of the writ of Habeas Corpu indicates that it is not a writ that is considered to an all-encompassing panacea against every form of wrongful detention that can occur at the hands of representatives of a government entity performing their duties as agents of a nation state. It is an important part of the entire due process rights that are afforded to a person who is accused of or being prosecuted for an alleged crime against a nation state. Being familiar with, being able to understand the purpose and how this writ is intended to work is extremely important for anyone functioning within the criminal justice system, either domestically or internationally. 

FINAL PAPER TOPIC

• The topic for the Final Paper for this course is the writ of Habeas Corpus. The student will be required to accomplish the following:

• Define the writ of Habeas Corpus

• Provide information as to the history of the Writ of Habeas Corpus

• Discuss the original purpose of the Writ of Habeas Corpus

• Discuss the developmental change in the Writ of Habeas Corpus

• Discuss how this writ has become such an important part of the protection of an accused/defendant in a criminal proceeding and as relates to the protection of the concept of due process

• Discuss how this writ has become such an important part of the protection of an accused/defendant in a criminal proceeding and as relates to the protection of the concept of human rights

• Provide an example from at least three countries, one being the United States, that have the concept of Habeas Corpus in their laws and/or rules of criminal procedure

• Discuss the importance of the concept of Habeas Corpus in international law and name a couple of international legal documents that address Habeas Corpus

• Discuss the present and future importance of Habeas Corpus

• Add whatever else you may feel is important to the discussion of the concept of the Writ of Habeas Corpus

• Additional Information for Final Paper Topic:

• World Habeas Corpus at http://cornelllawreview.org/files/2013/03/Jacksonfinal.pdf

• The Right to Habeas Corpus: Only in the Other Americas at http://digitalcommons.wcl.american.edu/auilr/vol9/iss3/1/

• Habeas Corpus: Refining the Procedure at http://www.nzlii.org/nz/other/nzlc/report/R100/R100.pdf

• The Forgotten Core Meaning of the Suspension Clause at https://harvardlawreview.org/wp-content/uploads/pdfs/vol125_tyler.pdf

GUIDELINES

• Your paper should be 20 to 22 pages and should cover the directives already given.

• You should follow accepted research approaches and citation format (APA).

• Your paper should be well developed and convey your understanding of the readings and concepts.

• Your paper should be organized, coherent, and unified.

• Your paper should be free of spelling and grammatical errors.

• Base your research paper on at least a dozen different research sources which must be listed in the concluding bibliography list.  

• Be sure to document all contentions and “facts” mentioned in an academically acceptable manner. (See writing resources below)

• Encyclopedias – especially Wikipedia – and dictionaries are unacceptable sources.   

book used in class Pati, R. (2010). Due process and international terrorism (published as part of a series: Studies in

Intercultural Human Rights). Martinus Nijhoff Press. ISBN: 978-9004172388