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Exactly as the title suggests. What is the writ equivalent of habeas corpus, but for punishments other than detention? For example monetary fines, etc.

2 Answers 2

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If you're asking for which of the historical prerogative writs could be used to prevent a fine:

  • prohibition: to prevent collection of the fine
  • mandamus: to compel return of the money
  • certiorari: to quash the decision that led to the fine

Today, it is not necessary to present the claim in terms of the prerogative writs (other than in very special areas of law).

If it was a fine imposed as a criminal sentence, there is no path for collateral attack through a prerogative writ: the only path is appeal.

Courts are also not restricted to the use of prerogative writs. They could also provide the equitable remedy of injunction, or issue declaratory relief, or provide a statotury remedy.

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  • Typo in last sentence - "statotury" should presumably be "statutory" :)
    – psmears
    Apr 19 at 10:27
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History and Background

What is a writ?

A writ is an order from a court directed at a public official, sometimes one who is not a party to a case, to do something. This was one of the core tools of public law in the common law system of England at the time of the American Revolution.

What is a writ of habeas corpus?

A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before the court to make an inquiry concerning his or her detention, to appear for prosecution (ad prosequendum) or to appear to testify (ad testificandum).

The primary use of a writ of habeas corpus is to determine if someone who is detained in jail or prison is being lawfully detained.

Usually, this is done to attack the incarceration of someone being held pursuant to a criminal conviction that is claimed to be defective. But, in principle, it could also be used to seek the release of someone whose incarceration sentences was lawful but has expired, or to seek someone who is being detained without an arraignment by a court or without a speedy trial (such as in the case of Jose Padilla).

Why is a writ of habeas corpus important?

Prior to the 1891, when the Evarts Act was passed, there were no direct appeals from federal criminal convictions. If you believed that you were wrongfully convicted, you could seek a pardon or commutation from the President of the United States, or you could file a writ of habeas corpus. The writ of habeas corpus existed to insure that someone who was detained had received at least a bare minimum of due process first.

The scope of a writ of habeas corpus was historically quite narrow. If the warden of the facility where you were incarcerated proved that you had been convicted of a crime by a court with jurisdiction over your case and that the sentence for the crime had not expired, a writ of habeas corpus to invalidate your sentence and release you would not be granted.

Over time, however, other improprieties in violation of your constitutional or federal statutory rights, and other gross irregularities in the criminal trial were recognized as grounds to grant it, although a writ of habeas corpus was not—and still is not—a remedy in many cases where a conviction could be set aside on a direct appeal.

On the other hand, a direct appeal of a criminal conviction (which, if available, must be exhausted before a writ of habeas corpus can be filed) is only available with respect to errors or misconduct in the trial court record. A direct appeal can not raise "behind the scenes" improprieties that would invalidate your conviction such as ineffective assistance from your lawyer in ways invisible at trial, bribery or duress of the judge or jurors or a defendants' lawyer, improper withholding of evidence by a prosecutor, a defendants' invisible-in-the-trial-record disability, newly discovered evidence, or the discovery that the crime for which you were convicted was not actually a crime. An attempt to invalidate a conviction based upon matters that could not be (or were not) raised in a direct appeal is called a collateral attack.

Answer

The primary way to contest a criminal conviction or fine is where there is a direct appeal to a higher court available, when this is the case.

Sometimes, however, a collateral attack on a criminal conviction, raising points that couldn't have been raised in a direct appeal (or excusably weren't raised in a direct appeal) can be brought when a fine is imposed, at least in some state courts.

Unlike the federal courts (where writ practice is governed by federal common law developed under the All Writs Act), many U.S. states have abolished common law writ practice, including the writ of habeas corpus, and replaced it with parallel remedies under court rules or statute statutes. In those states it is usually called a "Rule XXX" Motion for whatever the rule number of the rule is, without regard to saying which set of rules it came from, which is usually clear from context.

For example, in Colorado, collateral attacks on convictions in state court criminal cases regardless of the nature of the sentence (as opposed to direct appeals of convictions) are governed by Colorado Rules of Criminal Procedure 35. A Rule 35 motion in Colorado covers essentially everything that a state court writ of habeas corpus did (and more) in cases arising from a state court criminal conviction.

In cases where the fine is issued outside a state court and no direct appeal is available, a proceeding under Colorado Rule of Civil Procedure 106 replaces common law writ practice. In cases where the fine is issued in a state court case that is technically a civil case, a motion under Colorado Rule of Civil Procedure 60 is an option. Interlocutory orders (i.e. orders entered before the conclusion of a case at which point a direct appeal is available) that do irreversible harm (such as a fine imposed as a sanction before there is an appealable final order when the case is concluded, that purports to be enforceable immediately) can be reviewed in Colorado in an original jurisdiction case in the Colorado Supreme Court under Colorado Appellate Rule 21, in cases where interlocutory appeals are expressly authorized as set forth in Colorado Appellate Rule 4.1 for criminal cases and Colorado Appellate Rule 4.2 in civil cases. Sometimes, when none of these remedies are available, an independent civil lawsuit can be commenced seeking to set aside the fine. Cf. Colorado Rule of Civil Procedure 60(b) (acknowledging the availability of this remedy in some circumstances where relief is not available under a court rule).

This being said, it is not always possible to collaterally attack a fine sentence in the way that an incarceration sentence can be collaterally attacked with a writ of habeas corpus, either in state court or in federal court. Sometimes, only a direct appeal from such a sentence is available.

As noted in the answer by Jen to this question, sometimes a writ of prohibition to prevent collection of the fine, or writ of mandamus to to compel return of the money, would be available, but this would usually be limited to extreme cases (similar to the original scope of a writ of habeas corpus) where, for example, the fine was imposed by a court without jurisdiction over the case.

There is not a direct and exact parallel to a writ of habeas corpus in jurisdictions, including the federal courts, that still have common law writ practice, for cases where someone is not currently incarcerated for the offense even though they were wrongfully convicted.

In the same vein, if someone has been incarcerated and then released at the conclusion of their sentence, a federal writ of habeas corpus (even if it would otherwise be available under the Antiterrorism and Effective Death Penalty Act of 1996) is not a remedy available to set aside a wrongful conviction, even if that wrongful conviction has ongoing negative collateral consequences for the person convicted (e.g. by making them ineligible to own a firearm, or vote, or become a member of a licensed profession).

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