Habeas Corpus, Writ of

Article 1, Section 9, of the U.S. Constitution states: “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.” The Latin term habeas corpus means “You shall have the body.” A writ is a written order from a court of law that requires the performance of a specific act. A writ of habeas corpus requires officials to bring a person whom they have arrested and held in custody before a judge in a court of law, where they must convince the judge that there are lawful reasons for holding the prisoner. If the judge finds their reasons unlawful, then the court frees the suspect. The writ of habeas corpus is a strong protection for individuals from government officials who might want to jail them merely because they belong to unpopular groups or express criticisms of the government.

The privilege of the writ of habeas corpus is rooted in English common law and was specified in Section 39 of the Magna Carta (1215), through which English aristocrats imposed limits on the power of the king. Parliament enacted a habeas corpus statute in 1641, but because it was not entirely effectual, an amendment act was passed in 1679. The Crown was thus prevented from unjustly holding individuals in prison for personal or political reasons. By the end of the 17th century this individual right was solidly established as the appropriate process for curbing illegal imprisonment.

The English habeas corpus acts were not extended to the Anglo-American colonies. However, the writ was one of the widely recognized common law rights of individuals in the American colonies and, was frequently invoked before the Revolution. After the Declaration of Independence, the privilege of the writ of habeas corpus was included in several state constitutions enacted prior to the U.S. Constitution of 1787. The Second Article of Compact of the Northwest Ordinance of 1787 also protected this right. The federal Judiciary Act of 1789 provided power to all federal courts “to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” Every state of the United States of America has a similar law providing for writs of habeas corpus.

The U.S. Supreme Court has consistently upheld the individual's habeas corpus right, even when this right has been suspended by the federal government to guard public safety and security. In 1861, after the outbreak of the Civil War, President Abraham Lincoln suspended habeas corpus in parts of Maryland. This action was challenged in Ex parte Merryman (1861). Chief Justice Roger Taney, sitting as a circuit judge, ruled that only Congress had the right to suspend the writ, but Lincoln ignored the ruling. In Ex parte Milligan (1866) the Supreme Court decided that the writ could not be suspended in states (Indiana, in this case) where public order and safety were not endangered by the Civil War. In 1869 Chief Justice Salmon Chase wrote in Ex parte Yerger that the privilege of the writ of habeas corpus is “the best and only sufficient defense of personal freedom.” Ever since the founding of the United States, Americans have believed the writ of habeas corpus to be a primary protection of their personal liberties.

See also Ex parte Milligan

Sources

• Larry W. Yackle, “Habeas Corpus”, Constitution 5, no. 1 (Winter 1993): 61–66

Habeas Corpus, Writ Of, is a legal procedure by which a court inquires into the lawfulness of a person's confinement. It takes the form of an order from a court or judge requiring the custodian to produce the prisoner in court for a judicial investigation into the validity of the detention. In the words of Chief Justice John Marshall, "The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment" (Ex Parte Watkins, 1830).

Habeas corpus is celebrated as "the great writ of liberty," and has a special resonance in Anglo-American legal history, because the availability of the procedure means that if an individual is found to have been imprisoned illegally the court can release him or her, thus enforcing the rule of law and frustrating governmental oppression. "Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release" (Fay v. Noia, 1963).

The use of the writ against the Crown can be traced to the fifteenth century, with the judges drawing their authority both from the common law and from statutes. The most significant English legislation was the Habeas Corpus Act of 1679, which was widely copied throughout the American colonies and remained influential well into the nineteenth century. All states today retain the procedure in one form or another. Reflecting the importance attached to the writ, the U.S. Constitution (Article 1, section 9, clause 2) forbade its suspension "unless when in Cases of Rebellion or Invasion the public Safety may require it," and the Judiciary Act of 1789 authorized the federal courts to issue it. Pursuant to this authority, the early Supreme Court ordered the release of prisoners taken during the Whiskey Rebellion (United States v. Hamilton, 1795) of an individual detained in the District of Columbia for no better reason than that "he was an evil doer and disturber of the peace" (Ex Parte Burford, 1806), and of two of Aaron Burr's alleged coconspirators who had been arrested by the army (Ex Parte Bollman, 1807).

While there have been limited suspensions of the writ on several occasions, the most widespread occurred during the Civil War under orders from President Abraham Lincoln, for which he subsequently received congressional authority. In 1867, the Reconstruction Congress passed a statute explicitly authorizing the federal courts to adjudicate petitions filed by state prisoners asserting that they were being held "in custody in violation of the Constitution or law or treaties of the United States." The current federal habeas corpus statutes (28 U.S. Code, sections 2241, 2254) are direct descendants of the 1867 act.

Like other Reconstruction legislation, the act was narrowly construed by the Supreme Court during the last decades of the nineteenth century. This attitude under-went a change in the first quarter of the twentieth century, as exemplified by Moore v. Dempsey (1923), in which the Supreme Court held that the writ should issue to investigate allegations by black petitioners that their state convictions for murder in the wake of a massive race riot in Phillips County, Arkansas, had been procured by egregious government misconduct, including physical torture.

While the Supreme Court broadened its recognition of substantive constitutional rights against the states during the second half of the twentieth century, the occasions for the use of the writ of habeas corpus in federal court by state prisoners increased, especially in criminal cases. As a result, there were a number of unsuccessful efforts through the 1940s and 1950s to amend the federal statute so as to limit the writ's availability. Such proposals reappeared frequently during the 1970s and 1980s. In 1996, following the bombing of a federal building in Oklahoma City, Congress passed the Anti-Terrorism and Effective Death Penalty Act. This act rewrote the procedural rules governing the writ in an effort to speed up judicial proceedings, particularly in capital cases. Interpretations of the statute by the Supreme Court during the first five years of its effectiveness reflected the view that these changes were not, however, intended to work any fundamental changes in the scope of the rights that prisoners could vindicate through the writ. For example, in the case of Immigration and Naturalization Service v. St. Cyr (2001), the Court ruled that the act did not repeal habeas jurisdiction over immigrants confined pending deportation.

Bibliography

Freedman, Eric M. Habeas Corpus: Rethinking the Great Writ of Liberty. New York: New York University Press, 2001.

Liebman, James S., and Randy Hertz. Federal Habeas Corpus Practice and Procedure. 4th ed. Charlottesville, Va.: Lexis Law Publishing, 2002.