“Without it…the Game is Over”: Justin Brooks, director of the California Innocence Project, on the DOJ’s move to suspend habeus corpus


On March 21, 2020, Politico reported that the Trump Administration Justice Department submitted documents to Congress requesting lawmakers to grant the Attorney General power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” This broad authority to pause court proceedings during emergencies would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.” Politico raised a red flag on the potential threat this policy change would pose to habeas corpus―the constitutional right to apply for release from custody.

Seeing as habeas corpus hearings play a vital role in the release of wrongfully convicted people, Chris and I reached out to Justin Brooks, director of the California Innocence Project, to ask what impact this policy change could have on his work to free the innocent.

Amanda Knox

Okay. So what the crap?

Justin Brooks

Yeah, this is craziness and really out of left field.

Amanda Knox

Okay. So, from what I understand, Politico is reporting that Trump’s Justice Department has asked Congress for the ability to essentially suspend habeas corpus. One: Is that true?

Justin Brooks

I’ve read it in a lot of sources. It’s fairly shocking under normal circumstances, meaning normal administrations, not what’s going on with the virus, but nothing surprises me at this point about the Trump Administration.

Amanda Knox

Is there any way that Politico misread or misunderstood what Barr and the justice department is doing, or is this something that Barr is quietly trying to do while everyone else is distracted with coronavirus?

Justin Brooks

I haven’t seen a denial of it and it came out more than 24 hours ago. So that’s concerning. I guess it’s anyone’s bet, but we’ve seen, with this administration, stuff we’ve never seen before. We really have. A lot of this stuff that’s going on is not normal. It’s not normal when a whistleblower comes in and testifies in a nationally televised hearing, who’s a member of the military, that as soon as the hearing’s over just gets fired. And that’s just obviously one of a thousand examples, but that’s the new normal. And so who knows?

Amanda Knox 

Can you explain habeas corpus and its role and why it’s so important to the work that you do?

Justin Brooks

Sure. So habeas corpus literally in Latin means “release the body” and the idea is that it’s preserved in our federal Constitution and in every state Constitution that someone who is locked up by the government can petition the court for release. There are a number of bases for it. In my work as director of the California Innocence Project, our basis is always: our clients are innocent and they shouldn’t be in prison. And so with habeas, you’re literally suing the government to release your client. It’s actually a civil action. It’s not a criminal action. There’s a lot of odd things about it, but one of the odd things is the named defendant is actually the warden of the prison where the person’s being held. So you’re literally petitioning the executive who is in control of the body of your client. And without the right of habeas corpus, what can happen is the government can lock you up and you have no way of getting released. They can just say, Okay, your case has never been brought to court and you’re in prison and your detention could go on forever. Which is why it’s such a critical right, not just in innocence cases, but for anyone who gets arrested. In the United States you’re supposed to be presented before a judge within 48 hours of being arrested and without a right of habeas, a way of petitioning and making those things happen, you can just start arresting people and hold them in detention for however long the government wants to. The only time this has happened in U.S. history was during the Civil War. And the idea was, and the same thing also happened in the United Kingdom in the 1700s, and it was to stop the overthrow of the government. And it does say in the Constitution that habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it. So the whole notion in Article One of the Constitution is that this should be for times of rebellion. And you know, like every constitutional right, there’s no such thing as an absolute constitutional right. But that right of habeas corpus has been absolute, except when it was suspended during the time of the Civil War. So this is pretty extraordinary to be talking about at the time of a virus going through the population, which is obviously very serious, but to compare that with a rebellion and overthrow of the government, I don’t know what they’re expecting is going to happen as a result of this.

Chris Robinson

What is the best, most charitable interpretation of this.

Justin Brooks

If you trust your government 100%, which obviously I don’t, I’ve spent my entire career litigating against the government, the most charitable light you’d say, Hey, we have an emergency going on right now. The courts can’t really function, therefore we need to suspend court hearings and we need to suspend doing things the way we normally go about doing them. But in the age of technology, this is a particularly weak argument, that they couldn’t go through processes and procedures. I mean under that, an argument can made against that. Then, Okay, don’t arrest people at all. Let people out of the jails and prisons if we can’t do our processes. But that would be the most charitable way of looking at it, is saying they need some powers right now, short term to deal with an emergency. But how many emergencies have we had in this country between the Civil War and now? And you have to go back to the Civil War for when this was actually considered and happened. And think about the uniqueness of the Civil War. Literally a war was happening within one country with brother against brother and no clear battle lines and governments being overthrown and total chaos. And they couldn’t figure out who was the enemy and who was an ally. This just does not rise in any way to that level. This seems to me to be what’s very common around the world, which is a power grab at a time of chaos. Some people really love and thrive on chaos because chaos creates opportunity. 

Amanda Knox

And what would that power grab award the Trump administration? What could he do with this?

Justin Brooks

Well, it would allow you to lock people up without giving them proceedings. It would give you the power that we’ve seen abused before, where politicians have locked rivals up, people they think are speaking out against their policies that they’re trying to push through. I mean, again, the most charitable view of this would be, this is so everything can operate orderly in a reasonable way and we don’t have to follow the usual deadlines. The least charitable way of looking at it would be looking at countries like North Korea and China and Iran and Iraq and what has happened when the government has had absolute power over arresting people, holding them long term in detention, how that can be just used for politics and to silence people. So that’s the other extreme side of it, of people just starting to get locked up and not being able to get out.

Chris Robinson

Do you think there’s a realistic chance that they get away with this?

Justin Brooks

It’s a democratically controlled Congress, so I would doubt it, but, you know, things seem to be changing hour by hour right now. So I don’t know. I don’t know what kind of deal making goes on and what people have over other people. But this hasn’t happened in our country since the 1800s, so I wouldn’t think that it’s realistic. I don’t think there’s really any precedent for an illness, a virus, to cause the suspension of habeas. So this would all be completely uncharted territories. And it’s amazing to me that at this time they are using their resources and time and energy to pursue something like this. That in some ways is even more troubling. We need to deal with an immediate health crisis, and if people in D.C. are spending their time in meetings trying to figure out how to get more power out of this, even if it doesn’t happen, that’s deeply troubling. And the whole country is very frightened right now and we haven’t even seen the body bags start to pile up that we’re going to see over the next couple of months. So who knows what kind of power grab will happen in that environment? When you think about George Washington, go back a little further even. You know, he didn’t become the father of the country when he became president. He became the father of the country when he stepped down because he then respected the process and then the process became important. And the country was really founded on that day as a democracy.

Amanda Knox

So what have you seen personally, working in the world of criminal justice, that has been disrupted by coronavirus?

Justin Brooks

To start with, I canceled all my prison visits over the last couple of weeks. I couldn’t reach out to my clients. We had to shut our office down. Fortunately, we’re able to operate from home, so we continue to work on our cases, but I keep getting notices from the courts that all the hearings are canceled that are coming up. All the courts are shutting down. The criminal justice system’s coming to a halt. They’ve got an immediate problem in that these prisons and jails are basically petri dishes for infection, any kind of infection. And we’ve seen that with things far less contagious than this virus. I’ve spent my morning reaching out to as many people as I can who have the ears of our governor, begging them to talk to him about releasing our clients. I’ve got elderly clients in prison that are really at risk and innocent and they shouldn’t be in there to start with and now this thing might kill them. So it’s like everything else in American life right now. It’s completely disrupting it. And then it’ll come down to prioritizing. And as you know, people in prison are not exactly the highest priority for our society on a good day. On a great day, they have terrible medical conditions, terrible access to healthcare. And so you’re going to see a lot of people dying. And yeah, it’s really tragic.

Amanda Knox

I’ve seen reports of counties that are making new rules about not arresting people for minor offenses and releasing people, like elderly prisoners, who are not a threat to society. And this move by the Trump DOJ seems to be the exact opposite of that. Why would that be? I’m just trying to imagine the justification for how that could be an effective move to make.

Justin Brooks 

Yeah, that’s an outstanding question. How is it an effective tool? How could you use this tool in any positive way, is really the question. Right now, everybody’s scrambling to clear all the misdemeanors off the docket, to not process anybody into the jail that isn’t some serious or violent crime and trying to get people out of prison and through the parole process as quickly as possible because it’s all about density and how many people are in these facilities of how fast it’ll spread. And it doesn’t just impact the prisons and jails, that impacts all of us as those guards come in and out of those facilities and everybody else who comes in and out of the correctional facility. So I can’t think of a really good reason they want to do this under the current conditions. But if they are afraid that this could lead to some type of government overthrow, then you see a pretty strong motivation as to why to do this.

Chris Robinson

So, on a more optimistic note, if we do clear misdemeanors off the board, if we do release people from prisons, if we do stop, you know, pre-hearing detention and all those things, maybe this crisis is just what we need to actually push through a bunch of reforms that advocates have been wanting for years.

Justin Brooks

I think like every terrible thing, some good stuff can come of it. We’ve been seeing, I think over the last 10 years, a lot of reform in sentencing and some more common sense practices where we realize finally that maybe the exact same mode of incarceration that we’ve been using for a thousand years might need some modification. I mean we’ve really had zero creativity in a thousand years. It’s just put someone in a place where they’re locked away and then figure out how long we need to keep them there. And that’s been it. So we’ve been doing alternative sentencing, diversion, all these kinds of things to lessen the correctional population. Because it was just costing too much money. And that’s really, it was the economics that drove us to that. And so I think with this, maybe people can look at it and say, they come up with creative ways of dealing with misdemeanors they haven’t dealt with in the past and low level felonies and they see that the sky didn’t fall. Maybe they’ll continue some of those practices. That is very optimistic since it’s so politically driven and there’s such a massive industry around corrections. You are still fighting an uphill battle when people figure out they make a lot of money out of locking people up and politicians usually get elected on tough on crime policies, but you could see some creativity creep into the system as a result of this.

Amanda Knox

You mentioned that the courts are shutting down, meaning hearings that you had scheduled for your clients are just not happening. Are they canceled? Are they postponed indefinitely? Like, what does that look like? What does that mean?

Justin Brooks 

For now, we don’t know exactly what it means. All I know from now is they’ve all been taken off the docket. So this is a sorta, okay, this hearing isn’t happening. And then we’ve got to figure out later on when is it happening? And my work is particularly unique because judges carve time out of their schedule to do habeas hearings that are not part of their regular job. You know, the regular job is hearing criminal cases and trials and habeas is kind of a unique thing that comes up one every once in a while they think someone’s innocent. So our stuff just gets taken off calendar and then we’ve got to get together with the DA and with the court and figure out another date for it. But I’m not optimistic that anything’s going to happen for months. And then when these calendars get reset, I think the court’s going to be so overwhelmed that it’s going to be very hard for us to get anything on the calendar. You just can’t get people to come to work in a courthouse. I mean, imagine if you’re working in one of these courthouses that’s just packed every day with criminal defendants and lawyers and police officers and clerks. It’s just, you know, a nightmare in this kind of situation. So I can’t see jurors are going to show up for a very long time. So the whole criminal justice system is just going to come to a standstill.

Amanda Knox

I know from talking to exonerees how much habeas corpus means to all of them. All of them have had that hearing and it’s shocking to me that that could just go away quietly while everyone else is distracted.

Justin Brooks 

That’s why it’s called the great writ. I mean, if you’re involved in this work, you understand that it’s your only power to come back at the government, when you’re totally powerless. Without it, there is nothing. The process is over. The game is over.