Tagged: habeas corpus

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #365: TV COPS PUT A HOLD ON THE CONSTITUTION

chief_wiggumIf I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)


These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4th Amendment because they’re unreasonable seizures. They violate the 6th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.

The Law Is A Ass


Americas-Got-Powers-taps-into-TV-zeitgeist-4919II99-x-largeLet’s just say… I was disappointed.

I have a name for my disappointment and it’s America’s Got Powers #1, the first issue – hey, with the screwy numbering system American Comics use nowadays, one can’t be sure # 1 is actually the first issue – of the new mini-series from Image. Disappointing because it was such a cynical and negative portrayal of America. So let’s proceed that I might give voice to my disappointment.

In the not too distant future, to borrow a line from the Mystery Science Theater 3000 theme – because “borrow” sounds so much nicer than steal – something happened. Which, makes America’s Got Powers better than most mainstream comic books, where super heroes can take four pages just to get their mail – and you only think I’m making that up – so as to stretch out some skimpy story out for the six issues suitable for framing or collecting into a trade paperback.

What happened? A big blue crystal fell from outer space and landed in the middle of Golden Gate Park in San Francisco. Then, in a real break from mainstream comic books, something else happened. Yes two things happened in the same issue. Every pregnant woman within a five mile radius of the crystal went into labor. (Good thing that crystal didn’t land in Arizona where the new abortion law says pregnancy starts on the first day of a woman’s menstrual cycle. Under that definition, girls who’d never had sex would still be pregnant and might have given spontaneous, virgin births. The theological implications are staggering.)

Now you might think that’s enough for the first issue of a comic book. “But wait!” I say in my best Ron Popeil imitation, “There’s more!” Every one of those babies was born with a super power. And that’s where the fun began.

After all those super babies were born, the country endured the Power Riots, whatever those were, which “destabilized the entire country.” In order to calm the public, the US government rounded up the children who got super powers from a crystal, or “Stoners” as they were called, then put them in camps and a training school. The government conducted research on the interred Stoners and trained them how to use their powers, all, ostensibly, in an effort to “re-integrate them” into society. The government funded this facility with the TV series America’s Got Powers.

What’s America’s Got Powers? It was the country’s newest mega-hit reality TV show. The show’s premise was simple. Imagine a reality show which took the best parts of American Idol and American Gladiators, tossed them out, and presented a mash-up of the rest. In other words, in America’s Got Powers, Stoners fought both mechanical adversaries and each other in televised combat all in an effort to be the last one standing. America’s Got Powers was kind of like The Hunger Games but with less food. The winners got to join the world’s only super-hero team,“Power Generation,” while the losers who survived went “back to the camps.”

As the story opened, America’s Got Powers was about to start its seventeenth season. Each of the shows’s first sixteen seasons had become increasingly brutal. With its seventeenth season, the producers decided to reduce all the safety protocols in the combat arena to the minimum settings and to handicap the Stoners with secret treatments or devices that slowed them down. The result was the Stoners couldn’t fight their robotic opponents effectively and were pounded on until they looked like Wile E. Coyote on a particularly bad day.

Now, you might have noticed that I used the word “ostensibly” when I said the purpose of the government’s program was to re-integrate the Stoners into normal society. We’re dealing with an agency of the United States government in a comic book. In today’s comic books, any government agency that doesn’t have a secret agenda is underachieving. America’s Got Powers’ evil secret agenda was confirmed by the producers of the show; an Army general, a United States Senator, and a corporate CEO. We’re not quite sure what the secret agenda was, but we’re pretty sure it was up to no good. After all, what fun is a secret government agenda that’s up to good?

(One point about this trio of producers: Creators, when you set up a government agency with an evil secret agenda, you risk both having your political motivations questioned and having subtlety points deducted from your score by drawing the politician to be a dead ringer for Sarah Palin.)

“But, Bob,” you ask in one of those marvelous imaginary conversations between reader and columnist which I pretend can happen as a way of making a transition, “why fret about the subtlety of political caricatures when this story postulated that the US government was rounding up differently-abled minors, putting them into camps and training them to become involuntary soldiers or some such? We have the Emancipation Proclamation and the 14th Amendment. And child endangerment laws. And child labor laws. Those sorts of things can’t happen, can they?”

Of course not. Those things can’t happen. That’s why colleges and high schools all over this country televise football games. Games in which young men get injured, seriously injured, catastrophically injured, and even fatally injured. And that’s just college and high school. Imagine if a government with a secret agenda got involved. Because that sort of thing can’t happen.

Of course not. Those things can’t happen. That’s why this country never had a Selective Service Commission or a draft and it never conscripted minors who couldn’t even vote yet into the armed forces to fight wars in North America, Europe, Africa, western Asia, southeast Asia., central Asia, and anywhere else where those conscripted minors ended up in the path of enemy bullets and fragmentation grenades. Because that sort of thing can’t happen.

Of course not. Those things can’t happen. That’s why the PATRIOT Act doesn’t exist and has never been used to abolish the Writ of habeas corpus or to justify rounding up people and confining them in Guantanamo Bay indefinitely without trial. Because that sort of thing… Oh you get the idea.

And before you argue that Gitmo is used to house – or warehouse – foreign nationals and such confinement can’t happen to United States citizens, I remind you of the Japanese Internment Camps of World War II. You know, the program where thousands of people who happened to have Japanese ancestry but who were born in this country and were unquestionably United States citizens, were removed from their homes, deprived of their property, and placed in indefinite confinement in internment camps without ever having been charged with a crime. Without, in fact, ever even having committed a crime.

And I guess that’s why I was so disappointed with America’s Got Powers and its cynical and negative portrayal of America. Given what we know about what truly happens in this country, I don’t think America’s Got Powers was anywhere near cynical or negative enough.

AUTHOR’S NOTE: From time to time I have been running columns I wrote years ago which, for one reason or another, have not been widely published. This is another one of them. This is, in fact, the last such column I have in my files. So I guess I’d better get busy writing the next new column, because I don’t have any more old ones with which to buy myself some time.