Wednesday, September 24, 2008

Our Government is Incarcerating Many People Without Any Lawful Authority

The Executive branch of our government is knowingly incarcerating many people whom it knows it has no legal authority to incarcerate. It appears to be our government's policy that, although it is unlawful to incarcerate these individuals, the government will continue to keep them in custody unless and until each affected individual wins a habeas corpus proceeding resulting in a court order for his release. Nor has our government even notified the affected individuals that they are being held unlawfully. Such illegal incarcerations predicated on a wholesale disregard for the law by our government undermines the very authority of our government to expect people to follow its laws. It ought to be offensive to those who expect our government to be one of law. It also risks civil damages for illegal imprisonment based on this unlawful incarceration.

No, I am not referring to the Bush administration and Guantanamo. Rather, I am addressing the fact that a month after the New York Court of Appeals has expressly held that sentence of post release supervision [PRS]not imposed by judges are void and a week after the Appellate Division, Fourth Department held that consequently a person in custody for violating the terms of PRS not imposed by a judge is entitle to be discharged "from custody forthwith" neither the New York State Division of Parole nor the New York State Department of Corrections has taken steps to discharge from custody the many people currently incarcerated for violating the terms of PRS not imposed by a judge. Rather, all that New York is doing with respect to these unlawfully incarcerated individuals is taking steps to have them lawfully sentenced to PRS by judges. But, of course, even after these people are lawfully sentenced to PRS they cannot be lawfully incarcerated for conduct which predates the imposition by a judge of a sentence of PRS. So, these people are all entitled to immediate release. Yet, absent any lawful sentence or authority, New York continues to keep these people locked up.

If you are offended by our government's wholesale disregard of its laws, you might want to write to Brian Fischer, Commissioner, NYS Department of Correctional Services, Building 2,1220 Washington Ave, Albany, New York 12226-2050 and to George P. Alexander, Commissioner of the NYS Division of Parole,97 Central Avenue, Albany, NY 12206 urging that they follow the law and work to insure the immediate release of persons held in New York prisons for violating the terms of PRS which were not imposed by a judge.

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