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For other uses, see Habeas corpus (disambiguation).
Latin for "you [should] have the body", in common law countries, habeas
corpus is the name of a legal instrument or writ by means of which
detainees can seek release from unlawful imprisonment. A writ of habeas
corpus is a court order addressed to a prison official (or other
custodian) ordering that a detainee be brought to the court so it can
be determined whether or not that person is imprisoned lawfully and
whether or not he or she should be released from custody. The writ of
habeas corpus in common law countries is an important instrument for
the safeguarding of individual freedom against arbitrary state action.
Contents [hide]
1 Derivation
2 Habeas corpus ad subjiciendum
2.1 History
2.2 United States
2.2.1 Suspension during the Civil War and Reconstruction
2.2.2 Suspension during the War on Terrorism
2.3 Australia
2.4 Republic of Ireland
2.5 Malaysia
3 Popular culture
4 Further reading on historical background
5 See also
6 References
7 External links
[edit]
Derivation
The writ is often referred to in full in legal texts as habeas corpus
ad subjiciendum. The name derives from the opening formula of the writ
in medieval times, and means "(You should) have/produce the body to be
subjected to (examination)". The full name of the writ is used to
distinguish it from similar ancient writs:
Habeas corpus ad deliberandum et recipiendum ("(You should) have the
body to deliberate and retire")
Habeas corpus ad faciendum et recipiendum, also known as habeas corpus
cum causa ("(You should) have the body when there is a case at law")
Habeas corpus ad prosequendum ("(You should) have the body to
prosecute")
Habeas corpus ad respondendum ("(You should) have the body to answer")
Habeas corpus ad satisfaciendum ("(You should) have the body until it
is sufficient (to let him/her go)")
Habeas corpus ad testificandum ("(You should) have the body to bear
witness")
[edit]
Habeas corpus ad subjiciendum
Known as the "Great Writ", the writ of habeas corpus ad subjiciendum is
a legal proceeding in which an individual held in custody can challenge
the propriety of that custody under the law. The prisoner, or some
other person on his behalf (for example, where the prisoner is being
held incommunicado), may petition the court or an individual judge for
a writ of habeas corpus.
Although the form of the writ of habeas corpus implies that the
prisoner is brought to the court in order for the legality of the
imprisonment to be examined, modern practice is to have a hearing with
both parties present on whether the writ should issue, rather than
issuing the writ immediately and waiting for the return of the writ by
the addressee before the legality of the detention is examined. The
prisoner can then be released or *bailed* by order of the court without
having to be produced before it.
The right of habeas corpus-or rather, the right to petition for the
writ-has long been celebrated as the most efficient safeguard of the
liberty of the subject. Dicey wrote that the Habeas Corpus Acts
"declare no principle and define no rights, but they are for practical
purposes worth a hundred constitutional articles guaranteeing
individual liberty". In most countries, however, the procedure of
habeas corpus can be suspended in time of national emergency. In most
civil law jurisdictions, comparable provisions exist, but they are
generally not called "habeas corpus".[citation needed]
[edit]
History
Blackstone cites the first recorded usage of habeas corpus in 1305, in
the reign of King Edward I. However, other writs were issued with the
same effect as early as the reign of Henry II in the 12th century.
Winston Churchill, in his chapter on the English Common Law in The
Birth of Britain, explains the process thus:
Only the King had a right to summon a jury. Henry accordingly did not
grant it to private courts...But all this was only a first step. Henry
also had to provide means whereby the litigant, eager for royal
justice, could remove his case out of the court of his lord into the
court of the King. The device which Henry used was the royal writ...and
any man who could by some fiction fit his own case to the wording of
one of the royal writs might claim the King's justice.
The procedure for the issuing of writs of habeas corpus was first
codified by the Habeas Corpus Act 1679, following judicial rulings
which had restricted the effectiveness of the writ. A previous act had
been passed in 1640 to overturn a ruling that the command of the King
was a sufficient answer to a petition of habeas corpus.
Then, as now, the writ of habeas corpus was issued by a superior court
in the name of the Monarch, and commanded the addressee (a lower court,
sheriff, or private subject) to produce the prisoner before the Royal
courts of law. Petitions for habeas corpus could be made by the
prisoner himself or by a third party on his behalf, and as a result of
the Habeas Corpus Acts could be made regardless of whether the court
was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful
detention by private individuals, most famously in Somersett's Case
(1771), where the black slave Somersett was ordered to be freed, the
famous words being quoted from an earlier case: "The air of England has
long been too pure for a slave, and every man is free who breathes it."
The right of habeas corpus has been suspended or restricted several
times during English history, most recently during the 18th and 19th
centuries. Although internment without trial has been authorised by
statute since that time, for example during the two World Wars and the
Troubles in Northern Ireland, the procedure of habeas corpus has in
modern times always technically remained available to such internees.
However, as habeas corpus is only a procedural device to examine the
lawfulness of a prisoner's detention, so long as the detention was in
accordance with an Act of Parliament, the petition for habeas corpus
would be unsuccessful.
Since the passage of the Human Rights Act 1998, the courts have been
able to declare an Act of Parliament to be incompatible with the
European Convention on Human Rights. However, such a declaration of
incompatibility has no immediate legal effect until it is acted upon by
the government.
[edit]
United States
This procedure, part of English common law, was considered important
enough to be specifically mentioned in the United States Constitution,
which says, "The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it." (Article One, section nine).
In the USA, the writ of habeas corpus ad subjiciendum is a civil (as
opposed to a criminal) proceeding in which the court inquires as to the
legitimacy of a prisoner's custody. Typically, habeas corpus
proceedings investigate whether a criminal trial was conducted fairly
and constitutionally after the criminal appellate process has been
exhausted. Habeas corpus is also used as a legal avenue to challenge
other types of custody such as pretrial detention or detention by the
Bureau of Immigration and Customs Enforcement pursuant to a deportation
proceeding.
The "constitutional" writ of habeas corpus, which was originally
understood to apply only to those held in custody by officials of the
executive branch of the federal government, and not to those held by
state governments, and then only within the jurisdiction of the court,
should be distinguished from what can be called "statutory" habeas
corpus. Congress granted all federal courts jurisdiction under Title
28, Section 2241 of the United States Code to issue writs of habeas
corpus to release prisoners held by any government entity (state or
federal) from custody, but only when held in violation of the
Constitution. Title 28 U.S.C., section 2254, is the primary habeas
corpus vehicle to challenge the constitutionality of a state court
conviction. A similar provision, 28 U.S.C., section 2255, (though
technically not a habeas corpus statute) provides analogous relief to
federal prisoners.
Sections 2254 and 2255 govern the grant of habeas corpus relief by the
federal courts after a prisoner is convicted and his direct appeals (in
either state or federal court, depending on which jurisdiction has
convicted the prisoner) have been completed. Prisoners who have been
convicted in state courts also have access to habeas corpus actions
under state law and can pursue such relief in addition to federal
habeas corpus.
Decisions by the Warren Supreme Court greatly expanded the use and
scope of the federal writ in the 1950s and 1960s. Over the last thirty
years, decisions by the Burger and Rehnquist Courts have somewhat
narrowed the writ. The Anti-Terrorism and Effective Death Penalty Act
of 1996 further limited the use of the federal writ by, among other
things, imposing a one-year deadline (statute of limitation) and
dramatically increasing the federal judiciary's deference to decisions
previously made in state court proceedings either on appeal or in a
state court habeas corpus action.
An example illustrates the section 2254 (which challenges a prisoner in
state prison) process:
A prisoner is convicted in state court and sentenced to a term in
prison. He appeals his conviction to the state appellate court and then
to the state supreme court. All uphold his conviction. Within a year,
he files a "petition for habeas corpus" in a federal District Court,
naming the prison warden as the defendant (as noted above, a petition
for habeas corpus is a civil proceeding, with the prisoner as the
plaintiff). The warden, typically represented by the state attorney
general, files an "Answer." The prisoner may then respond to the
answer. If his petition has a procedural defect, such as a failure to
appeal to his state's highest court, his petition will be dismissed
"without prejudice," meaning that the prisoner may refile his petition
once he finishes exhausting his state remedies. If his petition,
however, appears to have merit, the district court may appoint a
federal Public Defender to represent him and hold an evidentiary
hearing to evaluate the merits of his claim. If the judge determines
that the prisoner's detention in state prison infringes on a
constitutional right as recognized by the U.S. Supreme Court, the judge
will order that the prisoner be released or, at least, granted a new
trial. If not, his case will be dismissed with prejudice. After that,
the prisoner may appeal to the United States Court of Appeals, provided
he obtains a "certificate of appealability," or "COA," before
proceeding. If the COA is denied, the prisoner may ask the Court of
Appeals to reconsider its decision. If the prisoner is unsuccessful, he
is barred from filing a second or successive petitions for writs of
habeas corpus in the district court, absent permission from the Court
of Appeals.
A more recent use of the habeas petition is with cases involving DNA
evidence. If new technology can prove Bob did not commit the rape, he
may file a habeas petition and allege his detention was based on a
misapplication of the facts. At the evidentiary hearing, Bob's attorney
will present exculpatory DNA evidence, and the judge will order his
release. In its most basic form, the writ of habeas corpus serves as
the final chance a prisoner has to challenge his conviction, and it
will only be granted based on constitutional issues.
