In Light of the COVID-19 Pandemic, Could We See A Suspension of Habeas Corpus?

March 23, 2019

The COVID-19 pandemic could be one of the few public emergencies that truly challenge our constitutional rights as American citizens. The Tri-State Area has been hit especially hard by the virus, forcing state officials to take great measures to try and contain the spread.  As of 9pm on March 21, 2020, non-essential businesses across New Jersey were ordered to close indefinitely.  Restaurants and bars may continue to offer takeout and delivery services, and essential businesses such as grocery stores are allowed to remain open.  Seeing 178 cases in New Jersey alone, Gov. Phil Murphy has also implemented an 8pm curfew, after which he “strongly discourages” non-essential travel. 

Understandably, the status of the writ of habeas corpus could be in question during this uncertain time. Habeas corpus arises from the 5th and 6th Amendments of the United States Constitution and grants individuals who are being held in prison or another institution the authority to challenge the terms of their imprisonment.  The appropriate court will issue an order to the institution to produce the defendant and then will hear their case as to why they believe their imprisonment is unlawful.  The judge will then make a decision as to whether the defendant is being lawfully imprisoned, considering terms like the bail amount, whether the defendant committed a specific crime and if so, the nature of that crime, and whether police had an arrest warrant.  If it is determined that the defendant has been unlawfully or wrongfully imprisoned, the judge will then make a determination whether or not they should be released.

United States law grants the writ of habeas corpus to every citizen, but provides that it may be suspended by the government when it is necessary to do so for public safety, especially in an invasion or rebellion.  Could the coronavirus pandemic be declared an invasion?  With 4,661 cases in 49 states, the District of Columbia and Puerto Rico, it’s a strong possibility.  The virus is spreading at a more rapid pace than was anticipated, and federal and state governments have had to take quick action to try and contain the spread and “flatten the curve.”  If habeas corpus is suspended as a result of the COVID-19 pandemic, it will likely have the most impact on citizens under mandatory home quarantines.  Quarantines in the case of at-risk individuals are necessary to protect the public safety, and this has been proven by the CDC and scientists across the United States who dedicate time to studying viruses.  In these cases, the quarantined individual would likely not have a case that they are being unlawfully detained, due to the impact their release could have on high-risk individuals, such as those 65 and over and those who have underlying health or respiratory conditions.

Overall, it does seem that many of our constitutional rights could be in question as the government takes strict measures to promote social distancing and contain the spread of COVID-19. 

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