Our Constitution guarantees us the privilege to force our captors to take us before a court of jurisdiction and explain why we are being held. It is known as the privilege of habeas corpus, which cannot be suspended except in time of war or insurrection. We haven't had a legally declared war since WWII nor an insurrection, yet Congress and our courts have robbed us of this power for all practical purposes. Filing a petition for a writ of habeas corpus today is like wetting your pants in a dark suit. It gives you a nice warm feeling, but no one really notices.
This constitutional privilege is important because Government has proven itself no better at prosecuting citizens than anything else it does today. The obvious answer to those who governed was to basically remove our right to challenge illegal detention. This suspension and other perfidy has led to America now having the highest prison population on earth and in human history. No dictator or tyrant has ever come close to the numbers of citizens held in jails and prisons in the "land of the free." That is largely the result of our no longer being able to challenge illegal detention.
So how often do they get it wrong? Most of the time, is the answer, which is why it has been so important throughout our history to keep this right. In my own review of over 400 criminal cases, the prosecutors and/or the courts themselves violated law or the prisoner's constitutional rights in order to garner the conviction in every single case. In a Columbia Law School review of nearly every death penalty appeal between 1973 and 1995 (the year Congress basically outlawed our sacred privilege of habeas corpus with the Anti-Terrorism and Effective Death Penalty Act) "courts found serious reversible error in nearly 7 of every 10 capital sentences that were fully reviewed during that period." In other words, the courts were reviewing for error rather than an independent person or body, and had to admit that they violated law and the person's rights in almost every case.
If these guys and girls in black robes and pin-stripes get it wrong 70% of the time when they are killing one of us, how careful do you think they are when the stakes are lower?
Since 1996 when Congress decimated "The Great Writ of Liberty" with the AEDPA, the granting of petitions for overturn have neared zero. People are now jailed and held until they cry "Uncle" because the prosecutors and courts know that no matter how badly they violate their victims' rights in order to force a confession of guilt from them, nothing will ever come of it, as the Great Writ of Liberty is dead in the "land of the free," thanks to our elected representatives who swore to uphold the Constitution that requires it.
Before you vote for any candidate next year, ask them what they are going to do about restoring our constitutional privilege of habeas corpus before you even considering voting for them. They had no right to constrict it beyond effective use back in 1996 and that restriction has all but eliminated our power to challenge wrongful convictions.
When somebody gets it wrong 70% of the time, by their own admission, the right to challenge them is imperative. The Great Writ of Liberty must be restored or our very nation is at risk.
Plus, it is our rule of law. That's an idea! Let's go back to our United States Constitution, which every one of these judges, prosecutors, and politicians who violated it swore an oath to uphold.
Back to rule of law. Back to the United States Constitution. The Way Back to America.
Howell W. Woltz
Author of Justice Denied: the United States v. the People, and The Way Back to America: a 10-step plan to restore the United States to Constitutional Government
Born in North Carolina and educated at the University of Virginia, Wake Forest University and Caledonian University in Scotland, Howell now lives in Warsaw, Poland with his wife, Dr. Magdalena Iwaniec-Woltz. Howell is the European Correspondent for The Richardson Post and Chairman of The International Centre for Justice.