In response to widespread George Floyd protests this week, a New York State Supreme Court judge has suspended the right of habeas corpus, which requires the government to justify the detention of a person before a court. This means hundreds of New Yorkers can be detained indefinitely, albeit unlawfully.

What is Habeas Corpus?

Habeas corpus is a recourse in law challenging the reasons or conditions of a person's detainment. A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person's imprisonment or detention is lawful.

This means that you have the right to be released from imprisonment after an unlawful arrest. In New York the period from arrest to arraignment cannot exceed 24 hours.

Why now?

On Thursday night, New York City Criminal Court Judge James Burke agreed to a request by the New York City Police Department (NYPD) to allow for the detention of anyone arrested in the Bronx, Brooklyn and Manhattan without criminal charges longer than the 24-hour maximum mandated by state law.

"It is a crisis within a crisis," the judge wrote in his ruling. "All writs are denied." He justified his decision on the basis of the current pandemic which means law-mandated court hearings for arrests will have to be delayed: "because we are in a crisis caused by the Covid-19 coronavirus pandemic which prevents live arraignments, which in turn causes virtual arraignments."

Legally, Burke's ruling implies that the NYPD has been given the green light to indefinitely detain both criminal looters and peaceful protestors who violate New York City’s recently established curfew.

Is it legal?

No. As habeas corpus is enshrined in the US Constitution, its suspension is unconstitutional. Historically suspension has only ever been invoked in times of war.

Rep. Alexandria Ocasio-Cortez has also spoken out against Justice Burke's ruling in a tweet. "Civil liberties protect ourselves from governments using 'crises' and 'emergencies' as justification to dismantle our rights," she writes. "This is suspension of habeas corpus, it is unconstitutional, and it is deeply disturbing that both NYPD is seeking it and a judge rubber-stamped it."

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The Legal Aid Society (LAS), a non-profit organization, has sued the NYPD over the prolonged detention of protesters, accusing the department of violating New York's "24 hour arrest-to-arraignment requirement."

According to Marlen Bodden of LAS, Justice Burke's argument for delayed arraignments is not valid. "The NYPD has no excuses with its 38,000 police officers and the best technology in the world, with all the money they are being given," said Bodden. "They have no excuse to not process them in a timely manner."

As of Thursday, LAS confirmed that over 160 NYers citywide remain in custody 24+ hours after their arrest. Several legal experts have weighed in on the situation and criticized the judge's ruling as a constitutional violation. Take a look at some of the points below.

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Join us in taking a stance against institutionalized racism. For more:

  • Here’s how you can support protestors

  • 10 anti-racism accounts to help you stay informed

  • A simple guide to protesting safely

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