Ok Here is what has happened..The Law here gives a 60 day period of time to file Charges but here is what has happened and How totally illegal this is..... Prosecutors frequently fail to institute prosecution within the time limits required above for defendant who are in jail. So why are more defendants not being released from jail under this rule? The answer is that, like most other areas of the law, there is an exception. In this case, the exception was carved out by the Louisiana Supreme Court. And it deals with procedure. The procedure in this case involves the writ of habeas corpus. If the state has violated the time limitations provided above, the defendants remedy is to file a writ of habeas corpus with the court. Once the writ has been filed, it is set for hearing several weeks later. At this hearing, the defendant would show the court that the state failed to institute prosecution within the time limitations required subsequent to the date of arrest. At that point, according to the rules set forth above, the court would be required to release the defendant from jail. But the Louisiana Supreme Court has stated that if the prosecutor institutes prosecution prior to the hearing date on the writ of habeas corpus, then all is forgiven, and the defendant is not released from jail even though the prosecutor violated the time limitation set forth in the code. This makes it very easy for prosecutors to cure their mistakes, as soon as they see that a defendant has filed a writ of habeas corpus for violation of his speedy trial rights, all the prosecutor has to do is to make sure that he files the charges before the hearing date on the writ, and the defendant will remain in jail. -This exception carved out by the Supreme Court is probably one of the best examples of what people frequently call judicial activism, or legislating from the bench. Nothing in Louisiana statutes or laws says anything about giving the prosecutor until the hearing date on the writ of habeas corpus to file the charges. In fact, state law indicates clearly and plainly that if the prosecutor fails to file charges within the time limitations specified, the defendant shall be released from custody without having to post bond. The statute contains no exception whatsoever. The exception created by the Supreme Court is purely and simply legislating from the bench. Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. Legislating from the bench is another way of describing when a court overreaches their Article III (...in the Constitution, Separation of Powers...) authority and creates law. The courts job is to interpret the Constitution and apply law (either from Congress, the Constitution, or common law) to the facts of the case at hand. If Congress passes a law that violates a Constitutional right, it is the Courts job to overturn the law as soon as it becomes a relevant case or controversy before them. In other words, the Court may not overturn an unconstitutional law until it is made an issue before them (somebody suing as a result of the law, etc.) If Congress passes a law that does not violate the Constitution, the Court has no right to overturn the law, even if they are against the law itself: their only job in that instance is to take the law and apply it to the present issue. Sometimes however, Courts will impose their own opinions and beliefs onto the law, rather than simply determining what was meant by the law. In these cases, the Court is said to be legislating from the bench. Sometimes this is called acting as a super-legislature. Courts determined they had a right to Judicial Review in a case called Marbury v. Madison, and since then, the level of this review (referred to as Judicial Activism when the Court is being too aggressive, and Judicial Restraint when they are being too passive,) has been constantly criticized by whomever is being negatively impacted by a particular decision. The Constitution is the ultimate law. No laws are able to violate this document. After the Constitution is Federal Law, created by Congress. No State laws may violate Federal Laws, which in turn cant violate the Constitution. Some relevant cases on this issue may be: Marbury v. Madison, Brown v. Board of Education (I and II), Dred Scott, Roe v. Wade, McCulloch v. Maryland, Lochner v. New York, and Korematsu v. United States. Also: searches on Judicial Activisim, Judicial Restraint, and Separation of Powers, may all yield helpful information
Posted on: Sat, 26 Apr 2014 00:00:24 +0000
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