What is a Writ Of Habeas Corpus?

The Writ of Habeas Corpus from the latin “you have the body” also known as “the Great Writ”, is a Court order to a person (prison warden) or a government official who has restrained a prisoner. As stated in the U.S. Constitution, in Article I “The writ of Habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a Court or judge of competent jurisdiction, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint”.

The Habeas corpus concept was first expressed in the Magna Charta and first used by the common-law Courts in 13th and 14th century England. The writ was made available in the U.S. Federal Court to state prisoners through the Habeas Corpus Act of 1867.

The rights of the writ of Habeas corpus are granted in the U.S. Constitution in Article I.  Section 9, Clause 2 states that “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 U.S. Constitution forbids Government from suspending proceedings for Habeas except under extraordinary circumstances such as during times of war. The clause was appealed in 1861 when President Abraham Lincoln suspended the writ and authorized his Civil War generals to arrest anyone they thought to be dangerous.

The individual being held, or his/her representative, can petition the Court against the State or Federal agent. Petitions are usually filed by people serving prison sentences and authorized by statute in Federal Courts and all State Courts.

The writ must be in writing and must name the custodian as the respondent. Sometimes the convict is given the opportunity to present a short oral argument in a hearing before the Court, to establish evidence for the petition. The habeas petition must show that the Court ordering the detention, made a legal or factual error.

The writ of Habeas corpus is technically a procedural and extraordinary remedy and it is mainly used as a post-conviction help for State or Federal prisoners.

Federal Courts grant writs of Habeas corpus only when serious constitutional violations have occurred.

It gives a Court the power to release a prisoner and is a guarantee against any illicit detention. On the contrary, it does not necessarily protect other rights, such as the entitlement to a fair trial. The writ gives prisoner the right to ask an appellate judge to set them free or order an end to improper jail conditions. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the Court may order the prisoner’s release.

The writ of Habeas corpus was created to safeguard citizens against unjustified imprisonment. Federal courts expanded Habeas relief to include a broader definition of “custody” than mere arrest, including most faults found at trial. The current use of Habeas corpus includes cases involving extended detention of illegal immigrant or lawful permanent residents convicted of a crime, and the best immigration lawyers can use it to attack the collateral consequences of a criminal conviction. The writ is also available to civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration.

The writ of Habeas corpus is used by the attorney of a detainee to establish that the detention is illegal, so the Court may order the police to justify the detention. The detainee may be released on bail if the police fails to convince the court of the need for the continuation for his or her detention.