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Writs of Habeas Corpus & Special Requests for Production


Writs For Federal Prisoners in U.S. Marshal's Custody

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 testificandum. This 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 of 18 U.S.C. 751. Any individual who rescues or attempts to rescue shall be charged under 18 U.S.C. 752, 18 U.S.C. 753, or 18 U.S.C. 1072.

Transfer of Custody or Refusal of Writ

Federal prisoners in U.S. Marshals custody may lawfully be transferred to the custody of a state or local government pursuant to a state writ of ad prosequendum (see 28 U.S.C. 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 U.S. Marshals 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 (see 28 U.S.C. 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 U.S. Marshals will exercise discretion when a prisoner is a protected witness, has medical problems, or is a high security risk.

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 of Prisons

The Bureau of Prisons has the authority, in accordance with Bureau of Prisons Policy Statement 5875.13, 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 case.

Federal Prisoners Testifying on Behalf of Private Litigants

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 the prisoner.