Habeas Corpus

Habeas corpus is a procedure brought in a civil court to secure the IMMEDIATE RELEASE of an inmate for “illegal detainment”.  The right to habeas corpus is so important that it was guaranteed in Article 1 of the United States Constitution, which states:  “The privilege of the writ of habeas corpus shall not be suspended….”

The procedures for a habeas corpus proceeding in New York are contained in Article 70 of the New York Civil Practice Law and Rules (CPLR)A habeas corpus proceeding in New York is handled in a civil court, not a criminal court.

Article 70 of the CPLR can be used for three purposes.  The first is to obtain the IMMEDIATE RELEASE of a convicted inmate through the filing of a “writ of habeas corpus” (or an Order to Show Cause), along with a Petition detailing why the incarceration is illegal under the United States Constitution and applicable laws due to the deadly circumstances of incarceration recently created by COVID-19 (see below).

Article 70 of the CPLR can be used for two other purposes:

  1. To reduce the bail set at arraignment to an amount that an inmate awaiting trial can afford to pay and be IMMEDIATELY RELEASED; 
  2. To obtain affordable bail for an inmate awaiting trial who was denied bail at arraignment, so that the inmate can be IMMEDIATELY RELEASED after paying the bail.

An Article 70 proceeding is a “summary proceeding” which means that it happens very quickly, even now when most of the New York State court system is shut down.  It would be pointless to sue the Department of Corrections to have an inmate released due to coronavirus vulnerability if the judge takes weeks or months to make a decision and the inmate dies in the meantime. 

There is no law on the books in New York (or anywhere else to our knowledge) saying that refusing to release an inmate who is particularly susceptible to death from coronavirus is “illegal”.  Instead, we must turn to the source of all law in this country:  the United States Constitution.

Failing to release a convicted inmate with heightened susceptibility to death from COVID-19 (who does not pose an unreasonable threat to society) violates two provisions of our Constitution:  (1) the Fifth Amendment’s prohibition against against deprivation (taking) of life without due process of law and (2) the Eighth Amendment’s prohibitions against cruel and unusual punishments AND excessive bails.

1. The Fifth Amendment to the United States Constitution states:

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. 

All inmates have theoretically received due process of law in the taking of their liberty through imprisonment.  Either (1) they have been convicted of a crime and received a prison sentence, or (2) they have been arrested and are in custody waiting for trial after an arraignment (due process through a hearing before a judge) at which the judge set bail too high for the inmate to afford or denied bail completely.

However, the Fifth Amendment to the U.S. Constitution also prohibits the government from taking anyone’s LIFE without due process of law.   In a habeas corpus proceeding, the inmate’s attorney can argue that detention of an inmate with heightened susceptibility to death from COVID-19 is illegal, because it poses such an extraordinarily high risk of death that it is a “deprivation of life” without due process of law in violation of the Fifth Amendment.

2. The Eighth Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Even if an inmate with heightened susceptibility to coronavirus does not end up dying from it, being forced to live in an environment in which the inmate is constantly fearful of dying from exposure to a lethal virus is a cruel and unusual punishment that violates the U.S. Constitution.

Courts have historically acknowledged that “deliberate indifference” of a prison official can violate the Eighth Amendment. The failure to provide needed medical care to an inmate, for example, can constitute cruel and unusual punishment where it results in harm to that person.  

In these types of cases, the inmate’s attorney would need to show that:

(1) Prison officials were aware of some danger or risk of harm;

(2) The prison chose not to take any steps to remedy the problem;

(3) The failure to take action resulted in harm to the inmate.

At this point in the global pandemic, prison officials have a duty not to be indifferent (to be aware) of whether an inmate has heightened susceptibility to death from coronavirus, and to release or provide a safe environment for inmates with heightened susceptibility that will ensure against infection.  Judges have recently held that it is “cruel and unusual punishment” to hold an inmate with heightened vulnerability to COVID-19 unless the prison can protect the inmate.  Multiple inmates have been released based upon this argument.  In our opinion, the best place to make such an argument is in a civil court through a habeas corpus proceeding.

Providing a safe environment in a New York State prison for an inmate with heightened susceptibility to death from COVID-19 is nearly impossible to achieve, particularly since a large percentage of the prison population has chronic health problems due to poverty and inadequate medical care before they ever entered prison.  It is no secret that medical care in New York State’s prisons is inadequate to nonexistent. It is impossible for a prison to provide a safe environment and adequate medical care to all of the inmates with heightened susceptibility to death from COVID-19.

Even if an inmate with heightened susceptibility does not develop COVID-19 and die (which would make the Eighth Amendment useless), detention of a highly susceptible inmate will clearly result in harm to the inmate.

Inmates who have not been sentenced to death should not be made to live on “death row” waiting to die from a COVID-19 infection. Such confinement is psychological torture, and it is every bit as “cruel and unusual” as physical torture.  It certainly causes harm to the inmate in violation of the Eighth Amendment.

The Fifth and Eighth Amendments to the U.S. Constitution combined with New York’s Habeas Corpus law require the IMMEDIATE RELEASE of nonviolent inmates with heightened susceptibility to death from COVID-19.

New York State has already released large numbers of inmates with heightened susceptibility to death from COVID-19, but there are still many more left behind. 

We believe that a habeas corpus proceeding conducted by a neutral, civil court judge provides the best chance of obtaining the immediate release of an inmate with increased vulnerability to death from COVID-19.  For more information, please contact the LeNoir Law Firm.

2585 Broadway, Suite 251
New York, NY 10025
Office:  212-531-0284
Email:  info@habeaslawyers.com