Writs of Habeas Corpus & Special Requests for Production
WRITS FOR FEDERAL PRISONERS IN U.S.
In 1981, the Office of
General Counsel for the Department of Justice issued a ruling on the transfer of federal
prisoners to the physical custody of a state or local agency for production in a state or
local court pursuant to a writ of habeas corpus ad prosequendum or ad
ruling, concluded that jurisdiction is not waived when the government produces or arranges
the production of a federal prisoner in state court. The ruling also concluded that a
federal prisoner transferred to state custody for a state court appearance who escapes or
attempts to escape is considered to have escaped from federal custody within the meaning
USC 751. Any individual who rescues or attempts to rescue shall be charged
USC 752, 753,
TRANSFER OF CUSTODY OR REFUSAL OF WRIT
Federal prisoners in USMS custody may
lawfully be transferred to the custody of a state or local government
pursuant to a state writ of ad prosequendum (see
28 USC 2241). The transfer of federal prisoners under the
provisions of this section are intended to expedite local prosecutions
at reduced costs to local, state and federal agencies. It applies only
to the transfer of prisoners to state or local officials within or near
the USMS district where the prisoner is being held. Requests for
transfers of prisoners to other states may be submitted to the U.S.
Marshals and the local Assistant U.S. Attorney, for consideration.
Federal Prisoners in State Civil Cases:
If provided with a properly executed court order, the U.S. Marshals
may honor requests for producing federal prisoners in state civil cases.
A prisoner plaintiff is responsible for the cost of his or her
production. If the prisoner is indigent, the U.S. Marshals will seek to
have the state court provide that the cost of production will be paid
from any monetary awards issued to the prisoner from the action. The
plaintiff or defendant in a civil action seeking the production of a
federal prisoner as a witness is responsible for the cost of production
28 USC 2254).
Discretion in Honoring Writs: The
U.S. Marshal is not required to honor a request for a federal prisoner
in his or her custody pursuant to a state or local writ. Generally, the
writ is not honored until the completion of the prisoner’s sentencing.
In honoring a state or local writ, the USM will exercise discretion when
a prisoner is a protected witness, has medical problems, or is a high
Reimbursement of Costs: State
governments are responsible for all costs and expenses incurred when a
federal prisoner must be produced by U.S. Marshals in state courts under
a writ of habeas corpus and subsequently returned to the designated
facility by the U.S. Marshal. expenses include deputies’
salaries, mileage, per diem, or other expenses incurred.
FEDERAL PRISONERS COMMITTED TO THE BUREAU
The Bureau of Prisons has the authority, in
accordance with BOP Policy Statement 5875.3 dated June 1981, entitled
‘‘Transfer of Inmates to State Agents for Production on State Writs’’,
to release sentenced Federal prisoners to a state agency pursuant to a
state writ of habeas corpus or the Interstate Agreement on Detainers.
U.S. Marshals will not produce any Federal
prisoner held in Bureau of Prisons custody sought by states under the
Interstate Agreement on Detainers.
For processing instructions and
requirements, state and local prosecuting attorneys are to be referred
to a Bureau of Prisons regional office or institution holding custody of
the prisoner sought.
FEDERAL WRITS FOR STATE PRISONERS
State Prisoners in Federal Criminal
Cases: The U.S. Marshal will transport, maintain custody, and
produce a state prisoner in a federal criminal action. The provisions of
the Interstate Agreement on Detainers may require a 30 day waiting
period and transfer approval of the governor of the state.
State Prisoners in Federal Civil
Cases: The custodian of the prisoner is responsible for
transporting and producing state or local prisoners in a federal civil
FEDERAL PRISONERS TESTIFYING ON BEHALF OF
Responsibility for Costs of Prisoner
Movements in Support of Private Litigants: All expenses
associated with the production of a federal prisoner in a U.S. court on
behalf of a private litigant (including testifying for a defendant in a
criminal case) will be paid by the litigant. Prior written approval for
transfer of sentenced prisoners must be obtained from the Federal Bureau
of Prisons by the litigant’s attorney.
Advance Deposit for Prisoner
Movement Costs: The U.S. Marshal in the district where the writ
originated will require, in advance, a sufficient deposit from the
litigant to cover all expenses incident to the production and return of