Detainer

Last updated

Detainer (from detain, Latin detinere); originally in British law, the act of keeping a person against his will, or the wrongful keeping of a person's goods, or other real or personal property. A writ of detainer was a form for the beginning of a personal action against a person already lodged within the walls of a prison; it was superseded by the Judgments Act 1838. [1]

In the United States, a detainer in the context of criminal law is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent. [2] The Supreme Court of the United States has held that the Interstate Agreement on Detainers Act (1970) [3] allows for a trial of any untried indictment, information, or complaint within 180 days. [4] However, the prisoner needs to enter a request for final disposition to begin the clock. [5] U.S. Marshals are given the power to issue writs of detainers in 28 U.S.C. 566(c), which is how the federal government interacts with the states to retrieve those being held in state prisons.

In Carchman v. Nash, the Supreme Court held that a probation revocation (or parole revocation) is not an "untried indictment, information or complaint" and therefore is not controlled by the Interstate Agreement on Detainer Act's 180-day provision. [6] It also made it clear that a case that where a sentence has already been imposed against the prisoner is not under the 180-day restriction. [7] Unfortunately, this often creates loopholes, where a proceeding still needs to go on in the case with the detainer, but the defendant has already pleaded guilty, and is not eligible to receive a final disposition in the case until his original period of incarceration is over. This creates a situation that is the opposite of what the Interstate Agreement was intended to do:

The Agreement is based on a legislative finding that "charges outstanding against a prisoner, detainers based on untried indictments, information or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." Art. I. As has been explained:

"The inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program. He often must be kept in close custody, which bars him from treatment such as trusteeships, moderation of custody and opportunity for transfer to farms and work camps. In many jurisdictions he is not eligible for parole; there is little hope for his release after an optimum period of training and treatment, when he is ready for return to society with an excellent possibility that he will not offend again. Instead, he often becomes embittered with continued institutionalization and the objective of the correctional system is defeated." Council of State Governments, Suggested State Legislation, Program for 1957, p. 74 (1956). [8]

Most states have also enacted laws that create Interstate Commissions, which is usually an agency that creates its own policies and regulations regarding detainers transferring prisoners and probationers across state lines. While the Interstate Agreement on Detainers controls untried cases, Interstate Commission can control whether a person on probation or parole can come to their state to reside. [9]

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), federal U.S. Immigration and Customs Enforcement agents can issue a detainer requesting a state or local jurisdiction to hold a suspected non-citizen for an additional 48 hours beyond their scheduled release. Although the detainer lapses after 48 hours, and there is no longer legal authority to detain the prisoner, this is frequently disregarded, and attorneys across the United States report that non-citizens are frequently held much longer. [10] In the 2014 case Miranda-Olivares v. Clackamas County, United States magistrate judge Janice M. Stewart of the United States District Court for the District of Oregon ruled that immigration detainers violate detainees' Fourth Amendment rights and are merely requests that are not legally binding. [11] In July 2017, the Massachusetts Supreme Judicial Court unanimously held that the commonwealth's law enforcement could not hold a prisoner solely on the authority of an ICE detainer. [12] [13]

Related Research Articles

Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.

Unlawful combatant Person who engages in armed conflict in violation of the laws of war

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is, according to United States law, a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed to not be protected by the Geneva Conventions. The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements.

Writ Formal written order issued by a court

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and Certiorari are common types of writ, but many forms exist and have existed.

A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.

Parole Provisional release of a prisoner who agrees to certain conditions

Parole is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or else they may be rearrested and returned to prison.

Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration.

A habitual offender, repeat offender, or career criminal, is a person convicted of a crime who was previously convicted of crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.

A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by civil and criminal courts in England and the European continent.

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986), was a case in which the Supreme Court of the United States held an administrative agency may, in some cases, exert jurisdiction over state-law counterclaims.

Detention (imprisonment) Process whereby a state or private citizen lawfully holds a person, removing their freedom

Detention is the process whereby a state or private citizen lawfully holds a person by removing their freedom or liberty at that time. This can be due to (pending) criminal charges preferred against the individual pursuant to a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area, either for interrogation or as punishment for a crime.

Administrative detention is arrest and detention of individuals by the state without trial. In a number of legislations it is done for security reasons. Many countries use administrative detention as a means to combat terrorism or rebellion, to control illegal immigration, or to otherwise protect the ruling regime.

In United States law, habeas corpus is a recourse challenging the reasons or conditions of a person's detention under color of law. The Guantanamo Bay detention camp is a United States military prison located within Guantanamo Bay Naval Base. A persistent standard of indefinite detention without trial and incidents of torture led the operations of the Guantanamo Bay detention camp to be challenged internationally as an affront to international human rights, and challenged domestically as a violation of the Due Process Clause of the Fifth and Fourteenth amendments of the United States Constitution, including the right of petition for habeas corpus. In 19 February 2002, Guantanamo detainees petitioned in federal court for a writ of habeas corpus to review the legality of their detention.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The four essential protections included are prohibitions against, for the same offense:

Marsy's Law, the California Victims' Bill of Rights Act of 2008, enacted by voters as Proposition 9 through the initiative process in the November 2008 general election, is a controversial amendment to the state's constitution and certain penal code sections. The act protects and expands the legal rights of victims of crime to include 17 rights in the judicial process, including the right to legal standing, protection from the defendant, notification of all court proceedings, and restitution, as well as granting parole boards far greater powers to deny inmates parole. Critics allege that the law unconstitutionally restricts defendant's rights, by allowing prosecutors to withhold exculpatory evidence under certain circumstances, and harms victims by restricting their rights to discovery, depositions, and interviews. Passage of this law in California has led to the passage of similar laws in Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, Oklahoma, Ohio and Wisconsin, and efforts to pass similar laws in Hawaii, Iowa, Montana, Idaho, South Dakota, and Pennsylvania. In November 2017, Marsy's Law was found to be unconstitutional and void in its entirety by the Supreme Court of Montana for violating that state's procedure for amending the Montana Constitution.

Ahrens v. Clark, 335 U.S. 188 (1948), was a United States Supreme Court case that denied a federal district court jurisdiction to issue a writ of habeas corpus if the person detained is not within the territorial jurisdiction of the court when the petition is filed. The 6–3 ruling was handed down on June 21, 1948, with the majority opinion written by Justice William O. Douglas and the dissent written by Justice Wiley Blount Rutledge.

Alabama v. Bozeman, 533 U.S. 146 (2001), was a United States Supreme Court decision involving the prosecution of someone who was already serving a criminal sentence for a different crime in a different state.

Public Defender Service for the District of Columbia

The Public Defender Service (PDS) for the District of Columbia provides legal defense to individuals on a court-appointed basis for criminal and delinquency cases indigent adult and juvenile defendants/ respondents. Its Mental Health Division provides representation to persons facing involuntary civil commitment based on allegations that the person is a danger to self or others as a result of mental illness. Its parole division represents parolees charged with violating parole and facing revocation before the United States Parole Commission. PDS also provides other legal-related services in DC.

Wong Wing v. United States, 163 U.S. 228 (1896), was a United States Supreme Court case in which the Court found that the Fifth and Sixth Amendments to the U.S. Constitution forbid the imprisonment at hard labor without a jury trial for noncitizens convicted of illegal entry to or presence in the United States.

The Priority Enforcement Program is a program by U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement in the interior of the United States, under the U.S. Department of Homeland Security (DHS). PEP was an ICE program that worked with state and local law enforcement to identify illegal aliens who come in contact with state or local law enforcement, and remove those who are removable. PEP was announced by DHS Secretary Jeh Johnson in a November 20, 2014 memo as a replacement for Secure Communities (S-COMM). It builds on an updated list of immigration enforcement priorities released in another memo by Johnson issued on the same day.

References

  1. ↑ Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Detainer". Encyclopædia Britannica . Vol. 8 (11th ed.). Cambridge University Press. p. 111.
  2. ↑ Carchman v. Nash 473 U.S. 716, 719 (1985)
  3. ↑ 18 USC Appx
  4. ↑ Carchman 473 U.S. at 720.
  5. ↑ 18 USC Appx Article III
  6. ↑ Carchman 473 U.S. at 726.
  7. ↑ Id. at 727.
  8. ↑ Carchman 473 U.S. at 719-720.
  9. ↑ Wis. Stat. 304.16; Wis. Adm. Code DOC 328.09
  10. ↑ "Jeromy Alexander – Just a guy from Jackson".
  11. ↑ Kowalski, Daniel M. (April 17, 2014). "ICE Detainer = 4th Amendment Violation: Miranda-Olivares v. Clackamas County". LexisNexis. Retrieved July 14, 2015.
  12. ↑ Note, Recent Case: Massachusetts Supreme Judicial Court Holds that Local Law Enforcement Lacks Authority to Detain Pursuant to ICE Detainers , 131 Harv. L. Rev. 666 (2017).
  13. ↑ Lunn v. Commonwealth, 78N.E.3d1143 (Mass.2017).
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.