After an Arrest for a Crime: Part II

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Continued from: After an Arrest for a Crime

Pre-Trial Diversion Programs & Habeas Corpus

Most states offer criminal defendants the opportunity of entering a pre-trial diversion program if they meet certain criteria. The various types of programs and determining who is eligible will vary in each state. The most common types of diversion programs usually include:

Youthful Offender Program

This type of program is aimed at individuals between the ages of 16 to 21 who have committed a misdemeanor offense. The person is given a certain number of hours to perform community service rather than going to jail. Youthful offender programs are highly successful because they allow the offender to learn from his mistake. Sometimes the individual will forge a long-term relationship with his mentors and continue to volunteer long after his obligation has been fulfilled.

Drug & Alcohol Program

Certain people may be eligible to enter a drug or alcohol diversion program if they are battling a substance abuse problem. The most common requirements include:

  • They are a first-time offender
  • They are charged with a misdemeanor offense
  • They must agree to undergo random urine testing
  • They may be required to install an interlock ignition device in their vehicle
  • They may be ordered to wear an alcohol-monitoring bracelet around their ankle
  • They may be ordered to check into to a residential drug or alcohol treatment program
  • They may be required to complete out-patient drug or alcohol treatment after a residential treatment has been completed
  • They may be required to attend alcoholics or narcotics anonymous meetings during the week

Each program will require the defendant to pay a fee prior to participating in the first session. When the individual successfully completes the program, all criminal charges will be dismissed. If they fail to complete any of the program requirements, the charges against them will be reinstated and they could end up in jail.

Pretrial Family Violence Education Program

Defendants who are charged with domestic violence may be eligible for this program. They cannot have a prior conviction for committing violence against a family member. The court will hear from the victims in the case and then decide if the individual meets the eligibility requirements. These programs typically last for a period of two years.

In certain states, people who are charged with a non-violent felony offense, such as embezzlement or forgery, may be eligible for a diversion program. During this time, they are required to attend educational classes, pay a fine and stay out of trouble for a specified period of time. The length of time often depends upon the type of crime committed and the jurisdiction where it occurred. A member of the District Attorney’s office is usually the person who decides whether an individual is eligible for pretrial diversion, but some jurisdictions allow the judge to make the final decision.

Writ of Habeas Corpus

In a criminal case, an attorney can file a writ of habeas corpus of behalf of the defendant. This is a Latin term for “you should have the body.” The primary purpose of filing a writ is to allow a defendant to challenge the legality of his imprisonment. A writ is a court order given to a person who has detained the defendant. In some cases, this could be the prison warden or the agency that is holding the individual in custody. This powerful tool is meant to keep the government from locking people up without even charging them with a crime. Suspects have the right to request an appellate judge to review their case immediately.

There is a difference between filing an appeal and filing a writ. A writ is used when the defendant has been left with no other legal option to remedy their situation. The defendant may not be entitled to an appeal if any of the following happened:

  • The defense lawyer failed to lodge a timely objection when he or she should have when the alleged injustice occurred.
  • The individual needs immediate relief to prevent an injustice from happening.
  • The defendant’s attorney has already lodged an unsuccessful appeal.

Writs are heard more quickly than an appeal, and they can also be used to examine the conditions of the person’s imprisonment and the amount of bail they are being held on. Defendants who have been criminally convicted in state court can request that a federal court review the case.

Legislation Affecting Habeas Corpus

In 1996, the United States Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). This legislation amends federal habeas corpus laws regarding how it applies to state and federal prisoners. The following provisions are included in the Act:

  • It created a six-month statute of limitations in death penalty cases and a one-year statue of limitations in all other cases for filing a habeas corpus proceeding.
  • It bans individuals from filing successive habeas petitions which means that the defendant must put all of his claims into one appeal.
  • It only allows claims to succeed if the conviction is contrary to established federal law as determined by the U.S. Supreme Court or based on an unreasonable determination of the evidence presented in a state court proceeding.

In addition, the AEDPA requires petitioners to obtain an authorization from the appropriate federal court of appeals if they previously filed a habeas petition.

Habeas Corpus & Military Prisoners

The Detainee Treatment Act (DTA) of 2005 and the Military Commissions Act (MCA) of 2006 narrowed the scope of habeas relief even further. Prisoners being held in Guantanamo Bay were prohibited from accessing the federal courts through a habeas corpus petition. Instead they would be required to conduct habeas proceedings through the military commissions and then seek an appeal in the Circuit Court in Washington D.C.

In 2008, the case of Bourmediene v. Bush challenged the law and the Supreme Court ruled that the MCA was an unconstitutional suspension of prisoner’s rights. Any non-citizen detainee classified as an “enemy combatant” has a Constitutional right to file a petition for habeas corpus in federal court challenging the legality of his detention. The Supreme Court further emphasized that the freedom from unlawful restraint is a fundamental precept of liberty.

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