Habeas Corpus

The habeas corpus right gives suspects in any court the right to challenge their detention. Habeas corpus (hay-bee-us core-puss) n. Latin for “you have the body,” it is a writ (court order) which directs the law enforcement officials (prison administrators, police, or sheriff) who have custody of a prisoner to appear in court to help the judge determine whether the prisoner is unlawfully in prison or jail.

The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman, or probation has been summarily terminated without cause.

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.

Derivation

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".[1]

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.

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 a person did not commit a rape, he may file a habeas petition and allege his detention was based on a misapplication of the facts. At the evidentiary hearing, that person'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.

Suspension during the Civil War and Reconstruction

Habeas corpus was suspended on April 27, 1861, during the American Civil War by President Lincoln in Maryland and parts of midwestern states, including southern Indiana. He did so in response to riots, local militia actions and the threat that the Southern slave state of Maryland would secede from the Union leaving the nation's capital, Washington, D.C., in the south. He was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 1866 the Supreme Court of the United States decided that the suspension of the writ did not empower the President to try and convict citizens before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.

Many legal and constitutional scholars contend that these provisions are in direct opposition to habeas corpus, and the United States Bill of Rights. The case of Hamdi v. Rumsfeld re-confirmed the right of US citizens to habeas corpus even when declared an enemy combatant. (While the case contained many opinions, eight of the nine justices affirmed the basic principle that habeas corpus of a citizen could not be revoked.) The issue of aliens has been more complicated. While some argue that habeas corpus does not properly apply to noncitizens, US courts have also ruled that many rights under the Bill of Rights and the Fourteenth Amendment apply to "all persons," not just US citizens.

In the case of Hamdan v. Rumsfeld, argued before the United States Supreme Court in March 2006, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice. On June 29, 2006, in a 5-3 ruling the Supreme Court of the United States rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay, although Congress had previously passed the Detainee Treatment Act (DTA), which took effect on December 30, 2005:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." §1005(e)(1), 119 Stat. 2742.

On 29 September, 2006, the U.S. Senate approved a bill which would suspend habeas corpus for any alien determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States"[2], [1] by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48-51.)

According to the ACLU, this bill "removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse." According to Christopher Anders, an ACLU Legislative Counsel, "nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence that they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition, but that’s exactly what Congress just approved." [3]

Australia

Although the writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance, recently proposed legislation if enacted would severely restrict the efficacy of that remedy. In October 2005, the Australian Federal Government under the leadership of Prime Minister John Howard, proposed the Federal Anti-Terrorism Bill 2005. Before the bills are introduced for debate in the Australian Parliament, the draft has been forwarded to the States and Territories for approval.

The proposed legislation is currently being debated in both the federal and state parliaments and some legal experts have stated that the Act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence. Some Solicitors-General also consider the Act violates the separation of powers. Under the Act, a person can be detained without charge or trial for a period of one year. Amendments made that were proposed by some Premiers and Liberal backbenchers include a greater right of appeal of a detained person, and the case to be considered on the basis of merit, rather than points of law.

The proposed bill is considered contrary to habeas corpus because it allows people to be imprisoned by a decision of the executive branch of government rather than the judiciary, to be imprisoned indefinitely without charge or trial, and it makes it an offence to even talk about somebody being imprisoned. One of the more controversial aspects of the legislation is the requirement that a parent, if informed of their child's detention, may not inform any further person, including the other parent. This clause also applies to detention of adults.

Republic of Ireland

In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees each individual "personal liberty" and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.

The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.

Before the Second Amendment an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment a prisoner only has a right to apply to one judge and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that, where the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.

In 1965 the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could only be refused bail if they were likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment it has been possible for a court to take into account whether or not a person has committed serious crimes while on bail in the past.

Malaysia

In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though the name habeas corpus is not used. Article 5(2) provides that (2) "Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical Review. Vol. 8., No. 1 (October 1902), pages 18-27.
Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0-7006-1238-6.
Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1-4000-3042-0.
Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0-670-87006-4. Political context for Ex Parte Milligan explained on Pp. 186-189.
Helen A. Nutting. "The Most Wholesome Law--The Habeas Corpus Act of 1679." The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527-543.
Geoffrey R. Stone. 2004. Perilous Times, Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8.
Cary Federman. 2006. The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0-7914-6703-1.
Eric M. Freedman. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty (NYU Press) ISBN 0-8147-2717-4