What is Habeas Corpus

The term habeas corpus ("you have the body") is a Latin term derived from a longer phrase used in medieval times, "habeas corpus ad subjiciendum ("you may have the person to be subjected to [examination]").

A petition for habeas corpus asks that a court order the custodian of a prisoner to bring the prisoner to court, to determine if the prisoner's detention is lawful.

The term is most often used to refer to the writ of habeas corpus, a court order that requires the person holding a prisoner to produce the prisoner in court, and to the prisoner's right to petition for such a writ.

What Is a Habeas Corpus Petition

A petition for a writ of habeas corpus asks that a court issue the writ, and require that a prisoner be produced before the court at a particular place, date and time.

In its original use, a petition for habeas corpus was filed to request that the custodian of a prisoner be ordered to bring a prisoner to a county court to testify in a legal matter. This use of a petition for habeas corpus still exists, where a prisoner is in the custody of another county or penal system, and the prisoner's presence is required for a legal proceeding. If the writ is granted, the prisoner will be transported to the local jurisdiction by the local Sheriff's department, which will be responsible for guarding the prisoner during court proceedings and returning the prisoner to the other jurisdiction at the conclusion of the proceedings.

However, when most people think of a writ of habeas corpus, they have something more significant in mind: a petition demanding that the custodian of a prisoner explain in court the lawful basis upon which the prisoner has been detained. This type of writ is generally considered to be an extraordinary remedy, meaning that the prisoner has exhausted all other avenues of relief or appeal, and no other adequate remedy remains available to the prisoner other than through a writ of habeas corpus. A prisoner may use the writ to attempt to obtain relief on grounds not available on direct appeal. It is this second meaning that is discussed in this article.

Contents of a Habeas Corpus Petition

A petition for habeas corpus typically includes the following

  • The identity of the prisoner;

  • The identity of the prisoner's custodian;

  • The time, date and place of the requested court hearing; and

  • The issues to be addressed at that time by the court (e.g., the factual and legal basis asserted by a prisoner upon which the court is asked to rule the imprisonment unlawful).

Prisoners have the right to file petitions for habeas corpus, challenging the legality of their detention. Under United States constitutional law that right may be suspended in times of national emergency.

Once a court has been served with a petition for habeas corpus, depending upon the nature of the petition, it might grant a writ, deny the petition, or schedule a hearing on the petition. If the writ is granted, the writ may be served upon the custodian of the prisoner demanding that the prisoner be produced in court as ordered.

Hearings Following the Issuance of a Writ of Habeas Corpus

If a writ of habeas corpus is issued, the prisoner will be brought to court at the scheduled date and time. The purpose of a hearing on a writ of habeas corpus is not to determine whether or not a prisoner is innocent, but is instead to determine if the legal basis asserted for the imprisonment is lawful. If the detention is unlawful, the prisoner must be released.

Whether or not detention of a prisoner is lawful, if the charge against a prisoner is valid the prisoner may be subjected to trial on that charge. For example, a prisoner might file a petition for habeas corpus alleging detention on the basis of an unlawfully excessive bail, but even if the reviewing court finds the bail excessive and grants relief the prisoner would still have to stand trial on the underlying charge.

Federal Habeas Corpus Relief

The area for which many argue that habeas relief is most important, and for which many others argue that it has been most abused, is when a federal District Court is asked to review under the U.S. Constitution the legality of proceedings that occurred before a state court, with the prisoner alleging that his constitutional rights were violated.

In recent decades there have been a number of rulings by the United States Supreme Court limiting federal habeas corpus relief, and additional federal legislation restricting the circumstances under which petitions for habeas corpus may be heard by federal courts. Many of these measures have been aimed at death penalty cases, restricting requests for relief by prisoners who have been sentenced to death.

A prisoner who intends to pursue a petition for federal habeas corpus relief should be aware of the procedural requirements for filing a petition, as well as the filing deadlines. A missed deadline or procedural error may be fatal to a petition for habeas corpus, and without regard for the merits of the petition may close off that avenue of relief.

Copyright © 2004 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.